Exhibit (10.13)
EXECUTION COPY
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U.S. $24,000,000,000
REVOLVING CREDIT AGREEMENT
Dated as of July 27, 2005
among
PROCTER & XXXXXX INTERNATIONAL S.A.R.L. AND
THE ADDITIONAL BORROWERS (AS DEFINED HEREIN)
as the Borrowers
and
THE LENDERS PARTY HERETO
as Lenders
and
CITIBANK, N.A.
as Administrative Agent
and
CITIGROUP GLOBAL MARKETS INC.
as Sole Lead Arranger and Sole Book Runner
and
JPMORGAN CHASE BANK, N.A.
as Syndication Agent
and
ABN AMRO BANK N.V. AND DEUTSCHE BANK SECURITIES INC.
as co-Documentation Agents
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TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS............................... 1
SECTION 1.01 Certain Defined Terms.................................... 1
SECTION 1.02 Computation of Time Periods.............................. 11
SECTION 1.03 Accounting Terms......................................... 11
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES............................. 11
SECTION 2.01 The Revolving Credit Advances............................ 11
SECTION 2.02 Making the Revolving Credit Advances..................... 12
SECTION 2.03 Competitive Bid Facility................................. 13
SECTION 2.04 Facility Fee............................................. 17
SECTION 2.05 Termination or Reduction of the Commitments.............. 17
SECTION 2.06 Repayment of Advances.................................... 18
SECTION 2.07 Interest on Revolving Credit Advances.................... 18
SECTION 2.08 Interest Rate Determination.............................. 19
SECTION 2.09 Optional Conversion of Advances.......................... 20
SECTION 2.10 Prepayments.............................................. 21
SECTION 2.11 Increased Costs.......................................... 22
SECTION 2.12 Illegality............................................... 23
SECTION 2.13 Payments and Computations................................ 23
SECTION 2.14 Taxes.................................................... 24
SECTION 2.15 Sharing of Payments, Etc................................. 27
SECTION 2.16 Use of Proceeds.......................................... 27
SECTION 2.17 Evidence of Debt......................................... 27
SECTION 2.18 Call Right of Affiliates................................. 28
ARTICLE III CONDITIONS TO EFFECTIVENESS AND LENDING...................... 28
SECTION 3.01 Conditions Precedent to Initial Borrowing................ 28
SECTION 3.02 Conditions Precedent to Each Borrowing................... 29
SECTION 3.03 Determinations Under Section 3.01........................ 30
ARTICLE IV REPRESENTATIONS AND WARRANTIES................................ 30
SECTION 4.01 Representations and Warranties of the Borrowers.......... 30
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ARTICLE V COVENANTS OF THE BORROWERS..................................... 32
SECTION 5.01 Affirmative Covenants.................................... 32
SECTION 5.02 Negative Covenants....................................... 34
ARTICLE VI EVENTS OF DEFAULT............................................. 35
SECTION 6.01 Events of Default........................................ 35
SECTION 6.02 Remedies................................................. 36
ARTICLE VII THE AGENT.................................................... 37
SECTION 7.01 Authorization and Action................................. 37
SECTION 7.02 Agent's Reliance, Etc.................................... 37
SECTION 7.03 Citibank and Affiliates.................................. 37
SECTION 7.04 Lender Credit Decision................................... 38
SECTION 7.05 Indemnification.......................................... 38
SECTION 7.06 Successor Agent.......................................... 38
SECTION 7.07 Sub-Agent................................................ 38
SECTION 7.08 Other Agents............................................. 39
ARTICLE VIII MISCELLANEOUS............................................... 39
SECTION 8.01 Amendments, Etc.......................................... 39
SECTION 8.02 Notices, Etc............................................. 39
SECTION 8.03 No Waiver; Remedies...................................... 40
SECTION 8.04 Costs and Expenses....................................... 40
SECTION 8.05 Right of Set-off......................................... 42
SECTION 8.06 Binding Effect........................................... 42
SECTION 8.07 Assignments and Participations........................... 42
SECTION 8.08 Confidentiality.......................................... 44
SECTION 8.09 Judgment Currency........................................ 44
SECTION 8.10 Additional Borrowers; Assumption of Advances............. 45
SECTION 8.11 Governing Law............................................ 46
SECTION 8.12 Jurisdiction............................................. 46
SECTION 8.13 Execution in Counterparts................................ 46
SECTION 8.14 Waiver of Jury Trial..................................... 46
SECTION 8.15 Patriot Act.............................................. 46
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Schedules
Schedule I - List of Applicable Lending Offices
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Exhibits
Exhibit A-1 - Form of Notice of Revolving Credit Borrowing
Exhibit A-2 - Form of Notice of Competitive Bid Borrowing
Exhibit B - Form of Assignment and Acceptance
Exhibit C-1 - Form of Opinion of Luxembourg Counsel for the Initial Borrower
Exhibit C-2 - Form of Opinion of In-house Counsel for the Initial Borrower
Exhibit C-3 - Form of Opinion of Special Counsel for the Initial Borrower
Exhibit D - Form of Borrower Accession Agreement
Exhibit E - Form of Pledge Agreement
Exhibit F - Form of Guaranty Agreement
Exhibit G - Form of Registration Rights Agreement
Exhibit H - Form of Section 2.14 Certificate
Exhibit I-1 - Form of Revolving Credit Note
Exhibit I-2 - Form of Competitive Bid Note
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$24,000,000,000
REVOLVING CREDIT AGREEMENT
Dated as of July 27, 2005
PROCTER & XXXXXX INTERNATIONAL S.A.R.L., a societe a responsabilite limitee
organized under the laws of the Grand Duchy of Luxembourg (the "Initial
Borrower" and, together with the Additional Borrowers (as hereinafter defined),
collectively, the "Borrowers"), the LENDERS PARTY HERETO, CITIBANK, N.A., as
administrative agent for such Lenders (together with any successor thereto
appointed pursuant to Article VII, the "Agent"), CITIGROUP GLOBAL MARKETS INC.,
as sole lead arranger and sole book runner, JPMORGAN CHASE BANK, N.A., as
syndication agent, and ABN AMRO BANK N.V. and DEUTSCHE BANK SECURITIES INC., as
co-documentation agents, agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01 Certain Defined Terms.
As used in this Agreement, the following terms shall have the following
meanings (such meanings to be equally applicable to both the singular and plural
forms of the terms defined):
"Act" has the meaning specified in Section 8.15.
"Additional Borrowers" has the meaning specified in Section 8.10(a).
"Advance" means a Revolving Credit Advance or a Competitive Bid Advance by
a Lender to a Borrower as part of a Borrowing, and refers to a Base Rate Advance
or a Eurocurrency Rate Advance (each of which shall be a "Type" of Advance).
"Affiliate" means, as to any Person, any other Person that, directly or
indirectly, controls, is controlled by or is under common control with such
Person or is a director or officer of such Person. For purposes of this
definition, the term "control" (including the terms "controlling", "controlled
by" and "under common control with") of a Person means the possession, direct or
indirect, of the power to vote 10% or more of the Voting Equity of such Person.
"Affiliate Guaranteed Borrower" means any Additional Borrower as to which a
Guaranty Agreement by any Borrower or any Affiliate thereof is delivered in
accordance with Section 8.10(a)(iv).
"Agent's Account" means (a) the account of the Agent maintained thereby at
Citibank, N.A., at its office at Xxx Xxxxx Xxx, Xxx Xxxxxx, Xxxxxxxx 00000,
Account No. ________, Attention: Bank Loan Syndications, (b) in the case of
Advances denominated in Euros, the account of the Sub-Agent designated in
writing from time to time by the Agent to the Borrowers and the Lenders for such
purpose, and (c) in any such case, such other account of the Agent as is
designated in writing from time to time by the Agent to each of the Borrowers
and the Lenders for such purpose.
"Applicable Lending Office" means, with respect to each Lender, such Lender's
Domestic Lending Office in the case of a Base Rate Advance and such Lender's
Eurocurrency Lending Office in the case of a Eurocurrency Rate Advance and, in
the case of a Competitive Bid Advance, the office of such Lender or any of its
Affiliates notified by such Lender to the Agent as its Applicable Lending Office
with respect to
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such Competitive Bid Advance. It is acknowledged and agreed that any Lender may
have one or more Applicable Lending Offices with respect to Advances of any Type
made or to be made to any Borrower and one or more other Applicable Lending
Offices with respect to Advances of such Type made or to be made to any other
Borrower.
"Applicable Margin" means, as of any date, (a) for Base Rate Advances,
0.000% per annum and (b) for Eurocurrency Rate Advances, 0.060% per annum.
"Assignment and Acceptance" means an assignment and acceptance entered into
by a Lender and any Person and approved by the Initial Borrower and the Agent,
in substantially the form of Exhibit B hereto.
"Base Rate" means a fluctuating interest rate per annum in effect from time
to time, which rate per annum shall at all times be equal to the higher of:
(a) the rate of interest announced publicly by Citibank, N.A. in New
York, New York, from time to time, as Citibank, N.A.'s base rate; and
(b) 0.50% per annum above the Federal Funds Rate.
"Base Rate Advance" means a Revolving Credit Advance denominated in Dollars
that bears interest as provided in Section 2.07(a)(i).
"beneficial owner" has the meaning specified in Section 2.14(c)(v).
"Borrowers" has the meaning specified in the recital of parties to this
Agreement.
"Borrowing" means a Revolving Credit Borrowing or a Competitive Bid
Borrowing.
"Borrower Accession Agreement" has the meaning specified in Section
8.10(a).
"Business Day" means a day of the year on which banks are not required or
authorized by law to close in New York City and, if the applicable Business Day
relates to any Eurocurrency Rate Advances, on which dealings are carried on in
the London interbank market (or, in the case of an Advance denominated in Euros,
on which the Trans-European Automated Real-Time Gross Settlement Express
Transfer (TARGET) System is open).
"Closing Date" has the meaning specified in Section 3.01.
"Collateral" has the meaning specified in Section 1 of the Pledge Agreement
"Commitment" means, with respect to each Lender, the amount set forth
opposite such Lender's name on the signature pages hereof or, if such Lender has
entered into any Assignment and Acceptance, set forth for such Lender in the
Register maintained by the Agent pursuant to Section 8.07(d), as such amount may
be reduced pursuant to Section 2.05.
"Communications" has the meaning specified in Section 8.02(b).
"Company" means The Procter & Xxxxxx Company, an Ohio corporation of which
the Initial Borrower is, as of the Closing Date, a wholly-owned Subsidiary.
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"Competitive Bid Advance" means an advance by a Lender to any Borrower as
part of a Competitive Bid Borrowing and refers to a Fixed Rate Advance or a
Eurocurrency Rate Advance.
"Competitive Bid Borrowing" means a borrowing consisting of simultaneous
Competitive Bid Advances from each of the Lenders whose offer to make one or
more Competitive Bid Advances as part of such Borrowing has been accepted under
the competitive bidding procedure described in Section 2.03.
"Competitive Bid Note" has the meaning specified in Section 2.03(f).
"Competitive Bid Reduction" means, at any time, the deemed use of each
Lender's Commitment in an amount equal to such Lender's Pro Rata Share of all
outstanding Competitive Bid Advances at such time.
"Confidential Information" means information that the Company or any Loan
Party furnishes to the Agent or any Lender on a confidential basis or that a
reasonable Person would conclude is confidential or proprietary, but does not
include any such information that is or becomes generally available to the
public or that is or becomes available to the Agent or such Lender from a source
other than any of the Loan Parties, the Company or any of their Affiliates or
any of their respective advisors.
"Consolidated" refers to the consolidation of accounts in accordance with
GAAP.
"Consolidated Assets" means, with respect to any Loan Party, all assets of
such Loan Party and its Included Subsidiaries that, in accordance with GAAP,
would be classified as assets on the balance sheet of such Loan Party determined
on a Consolidated basis.
"Convert", "Conversion" and "Converted" each refers to a conversion of
Advances of one Type into Advances of the other Type pursuant to Section 2.08 or
2.09.
"Covered Jurisdiction" means, with respect to any Borrower, the United
States, Switzerland and Ireland.
"Debt" of any Person means, without duplication, (a) all indebtedness of
such Person for borrowed money, (b) all obligations of such Person for the
deferred purchase price of property or services (other than trade payables
incurred in the ordinary course of such Person's business), (c) all obligations
of such Person evidenced by notes, bonds, debentures or other similar
instruments, (d) all obligations of such Person created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession
or sale of such property), (e) all obligations of such Person as lessee under
leases that have been or should be, in accordance with GAAP, recorded as capital
leases, (f) all non-contingent obligations to reimburse any Person in respect of
any amounts paid under acceptances, letters of credit or similar extensions of
credit, (g) all obligations of such Person in respect of Hedge Agreements, (h)
all Debt of others referred to in clauses (a) through (g) above or clause (i)
below guaranteed directly or indirectly in any manner by such Person, or in
effect guaranteed directly or indirectly by such Person through an agreement (i)
to pay or purchase such Debt or to advance or supply funds for the payment or
purchase of such Debt, (ii) to purchase, sell or lease (as lessee or lessor)
property, or to purchase or sell services, primarily for the purpose of enabling
the debtor to make payment of such Debt or to assure the holder of such Debt
against loss, (iii) to supply funds to or in any other manner invest in the
debtor (including any agreement to pay for property or services irrespective of
whether such property is received or such services are rendered) or (iv)
otherwise to assure a creditor against loss, and (i) all Debt referred to in
clauses (a) through (h) above secured by (or for which the holder of such Debt
has an existing right, contingent or otherwise, to be secured by) any Mortgage
on
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property (including, without limitation, accounts and contract rights) owned by
such Person, even though such Person has not assumed or become liable for the
payment of such Debt.
"Default" means any Event of Default or any event that would constitute an
Event of Default but for the requirement that notice be given or time elapse or
both.
"Dollars" and the "$" sign each means lawful currency of the United States
of America.
"Domestic Lending Office" means, with respect to any Lender, the office,
offices, Affiliate or Affiliates of such Lender specified as its "Domestic
Lending Office" opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender, or such other office or
Affiliate of such Lender as such Lender may from time to time specify to each of
the Borrowers and the Agent. It is acknowledged and agreed that any Lender may
specify one or more Domestic Lending Offices with respect to Advances made or to
be made to any Borrower and one or more other Domestic Lending Offices with
respect to Advances made or to be made to any other Borrower; provided that no
Lender may specify more than one Domestic Lending Office unless it also
specifies a "Principal Domestic Lending Office", in which case such "Principal
Domestic Lending Office" shall be deemed to be its "Domestic Lending Office" for
purposes of the definition herein of "Eurocurrency Lending Office and Section
8.02.
"EBITDA" means, for any Person for any period, net income (or net loss)
plus the sum of (a) interest expense, (b) income tax expense, (c) depreciation
expense and (d) amortization expense, in each case determined for such Person
and its Consolidated Subsidiaries in accordance with GAAP for such period.
"EMU" means Economic and Monetary Union as contemplated in the Treaty of
Rome.
"EMU Legislation" means legislative measures of the European Union for the
introduction of, changeover to or operation of the Euro in one or more member
states, being in part legislative measures to implement EMU.
"Equivalent" in Dollars of Euros on any date means the equivalent in
Dollars of Euros determined by using the quoted spot rate at which the
Sub-Agent's principal office in London offers to exchange Dollars for Euros in
London prior to 4:00 P.M. (London time) (unless otherwise indicated by the terms
of this Agreement) on such date as is required pursuant to the terms of this
Agreement, and the "Equivalent" in Euros of Dollars means the equivalent in
Euros of Dollars determined by using the quoted spot rate at which the
Sub-Agent's principal office in London offers to exchange Euros for Dollars in
London prior to 4:00 P.M. (London time) (unless otherwise indicated by the terms
of this Agreement) on such date as is required pursuant to the terms of this
Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"EURIBO Rate" means, for any Interest Period, the rate per annum (rounded
upward to the nearest whole multiple of 1/100 of 1% per annum, if such average
is not such a multiple) appearing on Page 248 of the Moneyline Telerate Service
(or on any successor or substitute page) as the London interbank offered rate
for deposits in Euro at approximately 11:00 A.M. (London time) on the Business
Day immediately preceding the commencement of such Interest Period, for a term
comparable to such Interest Period or, if for any reason such rate is not
available, the average (rounded upward to the nearest whole multiple of 1/100 of
1% per annum, if such average is not such a multiple) of the respective rates
per annum at which deposits in Euros are offered by the principal office of each
of the Reference Banks
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in London, England to prime banks in the London interbank market at 11:00 A.M.
(London time) on the Business Day immediately preceding the first day of such
Interest Period in an amount substantially equal to such Reference Bank's
Eurocurrency Rate Advance comprising part of such Borrowing to be outstanding
during such Interest Period and for a period equal to such Interest Period,
subject, however, to the provisions of Section 2.08.
"Euro" and "(euro)"means the lawful currency of the European Union as
constituted by the Treaty of Rome which established the European Community.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurocurrency Lending Office" means, with respect to any Lender, the
office, offices, Affiliate or Affiliates of such Lender specified as its
"Eurocurrency Lending Office" opposite its name on Schedule I hereto or in
Assignment and Acceptance pursuant to which it became a Lender (or, if no such
office is specified, its Domestic Lending Office), or such other office,
offices, Affiliate or Affiliates of such Lender as such Lender may from time to
time specify to each of the Borrowers and the Agent. It is acknowledged and
agreed that any Lender may specify one or more Eurocurrency Lending Offices with
respect to Advances made or to be made to any Borrower and one or more other
Eurocurrency Lending Offices with respect to Advances made or to be made to any
other Borrower.
"Eurocurrency Rate" means, for any Interest Period for each Eurocurrency
Rate Advance comprising part of the same Borrowing, (a) in the case of any
Advance denominated in Dollars, the rate per annum (rounded upward to the
nearest whole multiple of 1/100 of 1% per annum) appearing on Moneyline Telerate
Markets Page 3750 (or on any successor or substitute page) as the London
interbank offered rate for deposits in Dollars at approximately 11:00 A.M.
(London time) on the Business Day immediately preceding the first day of such
Interest Period, for a term comparable to such Interest Period or, if for any
reason such rate is not available, the average (rounded upward to the nearest
whole multiple of 1/100 of 1% per annum, if such average is not such a multiple)
of the rate per annum at which deposits in Dollars is offered by the principal
office of each of the Reference Banks in London, England to prime banks in the
London interbank market at 11:00 A.M. (London time) on the Business Day
immediately preceding the first day of such Interest Period in an amount
substantially equal to such Reference Bank's Eurocurrency Rate Advance
comprising part of such Borrowing to be outstanding during such Interest Period
and for a period equal to such Interest Period or, (b) in the case of any
Advance denominated in Euros, the EURIBO Rate. If the Moneyline Telerate Markets
Page 3750 (or on any successor or substitute page) is unavailable, the
Eurocurrency Rate for any Interest Period for each Eurocurrency Rate Advance
comprising part of the same Borrowing shall be determined by the Agent on the
basis of applicable rates furnished to and received by the Agent from the
Reference Banks on the Business Day immediately preceding the first day of such
Interest Period, subject, however, to the provisions of Section 2.08.
"Eurocurrency Rate Advance" means a Revolving Credit Advance denominated in
either Optional Currency that bears interest as provided in Section 2.07(a)(ii)
or a Competitive Bid Advance denominated in either Optional Currency that bears
interest by reference to the Eurocurrency Rate.
"Events of Default" has the meaning specified in Section 6.01.
"Excluded Taxes" means, (a) with respect to any Lender or the Agent, Taxes
imposed on such Person's overall net income (and franchise Taxes imposed on such
Person in lieu of net income Taxes) as a result of any present or former
connection between such Person and the relevant taxing authority, in each case,
whether in effect as of the date hereof or subsequently imposed as a result of a
Change in Law,
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and (b) with respect to payments made by any Borrower organized in a Covered
Jurisdiction to any Person, any Taxes not imposed as a direct result of a Change
in Law occurring after the date on which such Person became a Lender or the
Agent.
"Existing Agent" means Xxxxxxx Xxxxx Capital Corporation, in its capacity
as agent under the Existing Credit Agreement.
"Existing Credit Agreement" means the Bridge Credit Agreement dated as of
January 28, 2005 between the Initial Borrower and the Existing Agent, as
amended, supplemented and otherwise modified by the First Amendment to Bridge
Credit Agreement and Pledge Agreement dated as of April 14, 2005, the Second
Amendment to Bridge Credit Agreement dated as of May 4, 2005 and the Third
Amendment to Bridge Credit Agreement dated as of May 17, 2005.
"Existing Pledge Agreement" means the Pledge Agreement dated as of March
28, 2005 by the Initial Borrower in favor of the Existing Agent, as amended,
supplemented and otherwise modified by the First Amendment to Bridge Credit
Agreement and Pledge Agreement dated as of April 14, 2005 and the Third
Amendment to Bridge Credit Agreement dated as of May 17, 2005.
"Federal Funds Rate" means, for any period, a fluctuating interest rate per
annum equal for each day during such period to the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day that
is a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
"Fixed Rate Advances" means a Competitive Bid Advance denominated in either
Optional Currency that bears interest as provided in Section 2.03(a)(i).
"GAAP" has the meaning specified in Section 1.03.
"Guarantor" means, with respect to any Affiliate Guaranteed Borrower, the
Borrower or the Affiliate of a Borrower that has guaranteed the obligations of
such Affiliate Guaranteed Borrower under a Guaranty Agreement delivered in
accordance with Section 8.10(a)(iv).
"Guaranty Agreement" means a guaranty agreement, in substantially the form
of Exhibit F hereto, made by the Initial Borrower or a Related Party in favor of
the Agent and the Lenders.
"Hedge Agreements" means interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements, currency
future or option contracts and other similar agreements.
"Included Subsidiaries" means with respect to any Loan Party, the
Subsidiaries of such Loan Parties that such Loan Party elects to include in the
Consolidated financial statements of such Loan Party most recently delivered to
the Agent pursuant to Section 4.01(e), 5.01(d)(i) or 5.01(d)(ii).
"Initial Lender" means each financial institution identified as an Initial
Lender on the signature pages to this Agreement.
"Interest Payment Date" means (a) with respect to any Base Rate Advance,
(i) the last day of each March, June, September and December during the period
in which such Base Rate Advance is outstanding and (ii) the date such Base Rate
Advance is Converted or paid in full, and (b) with respect to
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any Eurocurrency Rate Advance, (i) the last day of each Interest Period
applicable to such Eurocurrency Rate Advance and, if such Interest Period has a
duration of more than three months, each day that occurs during such Interest
Period every three months from the first day of such Interest Period and (ii)
the date such Eurocurrency Rate Advance is Converted or paid in full.
"Interest Period" means, for each Eurocurrency Rate Advance comprising part
of the same Borrowing, the period commencing on the date of such Eurocurrency
Rate Advance or the date of the Conversion of any Base Rate Advance into such
Eurocurrency Rate Advance and ending on the last day of the period selected by
the Borrower requesting a Borrowing pursuant to the provisions below and,
thereafter, with respect to Eurocurrency Rate Advances, each subsequent period
commencing on the last day of the immediately preceding Interest Period and
ending on the last day of the period selected by such Borrower pursuant to the
provisions below. The duration of each such Interest Period shall be one week or
one, two, three or six months, as such Borrower may, upon notice received by the
Agent not later than 9:00 A.M. (New York City time) on the Business Day
immediately preceding the first day of such Interest Period, select; provided,
however, that:
(a) no Borrower may select any Interest Period that ends after the
Termination Date;
(b) Interest Periods commencing on the same date for Eurocurrency Rate
Advances comprising part of the same Borrowing shall be of the same
duration;
(c) whenever the last day of any Interest Period would otherwise occur
on a day other than a Business Day, the last day of such Interest Period
shall be extended to occur on the next succeeding Business Day, provided,
however, that, if such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last day of such
Interest Period shall occur on the next preceding Business Day; and
(d) whenever the first day of any Interest Period occurs on a day of
an initial calendar month for which there is no numerically corresponding
day in the calendar month that succeeds such initial calendar month by the
number of months equal to the number of months in such Interest Period,
such Interest Period shall end on the last Business Day of such succeeding
calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as amended
from time to time, and the regulations promulgated and rulings issued
thereunder.
"Lenders" means each Initial Lender and each Person that shall become a
party hereto pursuant to Section 8.07 and, as to any Lender, the term "Lender"
includes any of its Affiliates designated as such by such Lender located in
(e.g., being fiscally resident in or organized in or having a branch, office,
permanent establishment or other place of business in) a Covered Jurisdiction.
"Loan Documents" means, collectively, this Agreement, each Note, if any,
each Borrower Accession Agreement, the Registration Rights Agreement, each
Guaranty Agreement and the Pledge Agreement.
"Loan Parties" means, collectively, at any time, the Borrowers and the
Guarantors at such time.
"Material Adverse Change" means any material adverse change in the
financial condition or results of operations of the Borrowers and their
Subsidiaries, taken as a whole.
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"Material Adverse Effect" means a material adverse effect on (a) the
financial condition or results of operations of the Loan Parties and their
Subsidiaries, taken as a whole, (b) the rights and remedies of the Agent or the
Lenders under any Loan Document or (c) the ability of the Loan Parties to
perform their obligations under the Loan Document.
"Material Subsidiary" means, at any time, any Subsidiary of the Initial
Borrower having (a) assets with a value of not less than 5% of the total value
of the assets of the Initial Borrower and its Subsidiaries, taken as a whole, or
(b) Consolidated EBITDA of not less than 5% of the aggregate Consolidated EBITDA
of the Initial Borrower and its Subsidiaries, taken as a whole, in each case as
of the end of or for the most recently completed fiscal quarter of the Initial
Borrower.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Mortgage" means any lien or security interest or other charge or
encumbrance having the effect of a lien or security interest.
"Non-Excluded Taxes" has the meaning specified in Section 2.14(a).
"Note" means a Revolving Credit Note or a Competitive Bid Note, as context
may require.
"Notice" has the meaning specified in Section 8.02(c).
"Notice of Competitive Bid Borrowing" has the meaning specified in Section
2.03(a).
"Notice of Revolving Credit Borrowing" has the meaning specified in Section
2.02(a).
"Optional Currency" means Dollars or Euros, as context may require.
"Permitted Mortgages" means the following types of Mortgages:
(a) Mortgages for taxes, assessments and governmental charges or
levies to the extent not otherwise required to be paid under Section
5.01(b);
(b) Mortgages imposed by law, including, without limitation,
materialmen's, mechanics', carriers', workmen's, storage and repairmen's
Mortgages and other similar Mortgages arising in the ordinary course of
business;
(c) pledges or deposits to secure obligations under workers'
compensation laws, unemployment insurance or other similar social security
legislation (including, without limitation, in respect of employee benefit
plans subject to ERISA) or to secure public or statutory obligations;
(d) Mortgages securing the performance of, or payment in respect of,
tenders, statutory obligations, contract bids, government or utility
obligations, payment, performance, surety and return-of-money bonds and
other similar obligations incurred in the ordinary course of business and
other obligations of a similar nature, whether pursuant to statutory
requirements, common law or consensual arrangements;
(e) any interest or title of a lessor or sublessor or a licensor and
any restriction or encumbrance to which the interest or title of such
lessor, sublessor or licensor may be subject;
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(f) licenses and other arrangements for the use of software and other
intellectual property by such Person;
(g) Mortgages arising out of judgments or awards that do not
constitute an Event of Default under Section 6.01(e) or 6.01(f);
(h) rights of way, easements, restrictions (including zoning
restrictions), covenants, consents, reservations, encroachments,
variations, mineral reservations and rights, leases, licenses and other
similar restrictions, charges, encumbrances (whether or not recorded),
prior rights of other Persons, and similar obligations with respect to real
property arising by operation of law or contained in similar instruments;
(i) Mortgages arising from the rights of lessors under leases
(including financing statements regarding property subject to such leases
or subleases);
(j) rights of consignors of goods, whether or not perfected by the
filing of a financing statement under the Uniform Commercial Code of any
jurisdiction (or similar filings and recordings under equivalent provisions
of applicable law), including, without limitation, goods which are the
subject of tolling agreements or manufacturing and servicing agreements;
and
(k) customary rights of set-off upon deposits of cash arising as a
matter of law in favor of banks, other depository institutions, brokers and
other securities intermediaries in which such cash is maintained in the
ordinary course of business.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, joint
venture, limited liability company or other entity, or a government or any
political subdivision or agency thereof.
"Platform" has the meaning specified in Section 8.02(b).
"Pledge Agreement" means the pledge agreement, in substantially the form of
Exhibit E hereto, by the Initial Borrower in favor of the Agent.
"Principal Manufacturing Property" means any facility (together with the
land on which it is erected and fixtures comprising a part thereof) used
primarily for manufacturing or processing, wherever located, owned or leased by
any Borrower, any Subsidiary of any Borrower, or any Guarantor and having a
gross book value in excess of $750,000,000, other than any such facility or
portion thereof (a) which is a pollution control or other facility financed by
obligations issued by (i) a state or local governmental unit pursuant to Section
103(b)(4)(E), 103(b)(4)(F) or 103(b)(6) of the Internal Revenue Code of 1954, or
any successor provision thereof, or (ii) the equivalent of the financing
referred to in subclause (a)(i) above in any jurisdiction other than the United
States, or (b) which, in the opinion of the Board of Directors of the Intial
Borrower or the applicable Loan Party, is not of material importance to the
total business conducted by the Loan Parties and their Subsidiaries, considered
as a whole.
"Process Agent" has the meaning specified in Section 8.12.
"Pro Rata Share" of any amount means, with respect to any Lender at any
time, the product of (a) a fraction the numerator of which is the amount of such
Lender's Unused Commitment at such time and the denominator of which is the
aggregate Unused Commitments of all Lenders at such time and (b) such amount.
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"Reference Banks" means (a) in the case of any Revolving Credit Borrowing,
Citibank, N.A. and [ ] and (b) in the case of any Competitive Bid Borrowing, two
of the Lenders making the all or part of such Competitive Bid Borrowing (as
selected by the applicable Borrower) or if only one Lender is making such
Competitive Bid Borrowing, such Lender
"Register" has the meaning specified in Section 8.07(d).
"Registration Rights Agreement" means a registration rights agreement, in
substantially the form of Exhibit G hereto, between the Company and the Company
and the Agent.
"Related Party" means a Person (a) a majority of whose voting common equity
is owned directly or indirectly by, or is under common control with, the Initial
Borrower, and that includes the name "Procter & Xxxxxx" or "P&G" in its legal
name or commonly used trade names, or (b) that directly or indirectly owns a
majority of the voting common equity in the Initial Borrower and includes the
name "Procter & Xxxxxx" or "P&G" in its legal name or commonly used trade names.
"Required Lenders" means at any time Lenders owed in excess of 50% of the
then aggregate unpaid principal amount (based on the Equivalent in Dollars at
such time) of the Revolving Credit Advances owing to Lenders, or, if no such
principal amount is then outstanding, Lenders having in excess of 50% of the
Commitments; provided, however, that if any Lender shall be an Affiliate of any
Borrower at such time, there shall be excluded from the determination of
Required Lenders at such time the then aggregate unpaid principal amount (based
on the Equivalent in Dollars at such time) of the Revolving Credit Advances
owing to such Affiliate (in its capacity as a Lender) at such time or, if no
such principal amount is then outstanding, such Affiliate's Commitment at such
time.
"Revolving Credit Advance" means an advance by a Lender to a Borrower as
part of a Revolving Credit Borrowing and refers to a Base Rate Advance or a
Eurocurrency Rate Advance.
"Revolving Credit Borrowing" means a Borrowing consisting of simultaneous
Revolving Credit Advances of the same Type made by each of the Lenders pursuant
to Section 2.01.
"Revolving Credit Note" has the meaning specified in Section 2.17(a).
"S&P" means Standard & Poor's, a division of The XxXxxx-Xxxx Companies,
Inc.
"Sub-Agent" means Citibank International plc.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which) more
than 50% of (a) the issued and outstanding capital stock having ordinary voting
power to elect a majority of the Board of Directors of such corporation
(irrespective of whether at the time capital stock of any other class or classes
of such corporation shall or might have voting power upon the occurrence of any
contingency), (b) the interest in the capital or profits of such limited
liability company, partnership or joint venture or (c) the beneficial interest
in such trust or estate is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries.
"Taxes" has the meaning specified in Section 2.14(a).
"Termination Date" means the earlier of (a) July 27, 2008 and (b) the date
of termination in whole of the aggregate Commitments pursuant to Section 2.05 or
6.02.
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"Transaction" means the Company's acquisition of Xxx Xxxxxxxx Xxxxxxx as
announced in the Company's press release dated January 28, 2005 filed on Form
8-K with the United States Securities and Exchange Commission.
"Transaction Termination Date" means the date of any public announcement by
the Company that the Transaction has expired or has been terminated.
"Treaty of Rome" means the Treaty of Rome of 25 March 1957, as amended by
the Single Xxxxxxxx Xxx 0000 and the Maastricht Treaty (which was signed at
Maastricht on 7 February 1992 and came into force on 1 November 1993), as such
treaty may be amended from time to time and as referred to in the EMU
legislation.
"Type" has the meaning specified in the definition of "Advance" in Section
1.01.
"Unused Commitment" means, with respect to any Lender at any time, (a) such
Lender's Commitment at such time, less (b) the sum of:
(i) the aggregate principal amount of all Revolving Credit Advances
made by such Lender (in its capacity as a Lender) and outstanding at such
time; and
(ii) the product of (x) a fraction the numerator of which is the
difference between the amount of such Lender's Commitment at such time
minus the aggregate principal amount of the Revolving Credit Loans held by
such Lender at such time and the denominator of which is the difference
between the aggregate Commitments of all Lenders at such time minus the
aggregate principal amount of the Revolving Credit Loans made by the
Lenders and outstanding at such time and (y) the aggregate principal amount
of Competitive Bid Advances made by the Lenders and outstanding at such
time.
"Utilization Fee" means, as of any date that the sum of the aggregate
principal amount of the Advances (other than Competitive Bid Advances)
outstanding exceeds 50% of the aggregate Commitments, 0.015% per annum.
"Voting Equity" means capital stock issued by a corporation, or equivalent
interests in any other Person, the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the election of directors (or
persons performing similar functions) of such Person, even if the right so to
vote has been suspended by the happening of such a contingency.
SECTION 1.02 Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
SECTION 1.03 Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles consistent with those applied in the preparation of the
financial statements referred to in Section 4.01(e) ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01 The Revolving Credit Advances. Each Lender severally agrees,
on the terms and conditions hereinafter set forth, to make Revolving Credit
Advances to each Borrower from time to
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time on any Business Day during the period from the Closing Date until the
Termination Date in an aggregate amount (based in respect of any Advances to be
denominated in Euros by reference to the Equivalent thereof in Dollars
determined on the date of delivery of the applicable Notice of Revolving Credit
Borrowing) not to exceed such Lender's Unused Commitment at such time. Each
Borrowing shall be in a minimum amount of $10,000,000, in respect of Revolving
Credit Advances denominated in Dollars, or (euro)10,000,000, in respect of
Revolving Credit Advances denominated in Euros (or, if less, an aggregate amount
equal to the amount by which the aggregate amount of a proposed Competitive Bid
Borrowing requested by any Borrower exceeds the aggregate amount of Competitive
Bid Advances offered to be made by the Lenders and accepted by such Borrower in
respect of such Competitive Bid Borrowing, if such Competitive Bid Borrowing is
made on the same date as such Revolving Credit Borrowing), and shall consist of
Revolving Credit Advances of the same Type made on the same day by the Lenders
ratably according to their respective Commitments; provided that such minimum
amount shall not apply with respect to any Revolving Credit Advances made in
accordance with the provisions of Section 2.04(a)(ii) or Section 2.07(c). Within
the limits of each Lender's Commitment, each Borrower may borrow under this
Section 2.01, prepay pursuant to Section 2.10 and reborrow under this Section
2.01.
SECTION 2.02 Making the Revolving Credit Advances. (a) Each Revolving
Credit Borrowing shall be made on notice, given not later than (i) 9:00 A.M.
(New York City time) on the Business Day immediately preceding the date of the
proposed Borrowing in the case of a Revolving Credit Borrowing consisting of
Eurocurrency Rate Advances denominated in Dollars, (ii) 11:00 A.M. (London time)
on the second Business Day prior to the date of the proposed Revolving Credit
Borrowing in the case of a Revolving Credit Borrowing consisting of Eurocurrency
Rate Advances denominated in Euros, or (iii) 9:00 A.M. (New York City time) on
the Business Day of the date of the proposed Revolving Credit Borrowing in the
case of a Revolving Credit Borrowing consisting of Base Rate Advances, by any
Borrower to the Agent (and, in the case of a Revolving Credit Borrowing
consisting of Eurocurrency Rate Advances denominated in Euros, simultaneously to
the Sub-Agent), which shall give to each Lender prompt notice thereof by
telecopier or Email. Each such notice of a Revolving Credit Borrowing (a "Notice
of Revolving Credit Borrowing") shall be by Email, confirmed promptly by
telephone, shall be in substantially the form of Exhibit A-1 hereto, specifying
therein the requested (A) date of such Revolving Credit Borrowing, (B) Type and
Optional Currency of Revolving Credit Advances comprising such Revolving Credit
Borrowing, (C) aggregate amount of such Revolving Credit Borrowing, (D) in the
case of a Revolving Credit Borrowing consisting of Eurocurrency Rate Advances,
the initial Interest Period for each such Revolving Credit Advance, (E) the
account to which the proceeds of the requested Revolving Credit Borrowing are to
be transferred and (F) whether the proceeds of such Revolving Credit Borrowing
will be used for the purpose of purchasing or carrying margin stock (within the
meaning of Regulation U issued by the Board of Governors of the Federal Reserve
System). Each Lender shall, before 11:00 A.M. (New York City time) on the date
of such Revolving Credit Borrowing, make available for the account of its
Applicable Lending Office to the Agent at the Agent's Account, in same day
funds, such Lender's ratable portion of such Revolving Credit Borrowing. After
the Agent's receipt of such funds and upon fulfillment of the applicable
conditions set forth in Article III, the Agent will make such funds available to
the appropriate Borrower by transferring the amount thereof to the account
designated by such Borrower for such purpose.
(b) Anything in subsection (a) above to the contrary notwithstanding, no
Borrower may select Eurocurrency Rate Advances for any Revolving Credit
Borrowing if the obligation of the Lenders to make Eurocurrency Rate Advances
shall then be suspended pursuant to Section 2.08 or 2.12.
(c) Each Notice of Revolving Credit Borrowing shall be irrevocable and
binding on the Borrower giving such notice. In the case of any Revolving Credit
Borrowing which the related Notice of Revolving Credit Borrowing specifies is to
be composed of Eurocurrency Rate Advances, such Borrower
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shall indemnify each Lender against any loss, cost or expense incurred by such
Lender as a result of any failure to fulfill on or before the date specified in
such Notice of Revolving Credit Borrowing for such Revolving Credit Borrowing
the applicable conditions set forth in Article III, including, without
limitation, any loss (excluding loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund the Revolving Credit Advance to be made by such
Lender as part of such Revolving Credit Borrowing when such Revolving Credit
Advance, as a result of such failure, is not made on such date.
(d) Unless the Agent or the Sub-Agent, as the case may be, shall have
received notice from a Lender prior to the date of any Revolving Credit
Borrowing that such Lender will not make available to the Agent or the
Sub-Agent, as the case may be, such Lender's Pro Rata Share of such Revolving
Credit Borrowing, the Agent or the Sub-Agent, as the case may be, may assume
that such Lender has made such portion available to the Agent or the Sub-Agent,
as the case may be, on the date of such Revolving Credit Borrowing in accordance
with subsection (a) of this Section 2.02 and the Agent or the Sub-Agent, as the
case may be, may, in reliance upon such assumption, make available to the
Borrower requesting such Revolving Credit Borrowing on such date a corresponding
amount. If and to the extent that such Lender shall not have so made such
ratable portion available to the Agent or the Sub-Agent, as the case may be,
such Lender and such Borrower severally agree to repay to the Agent or the
Sub-Agent, as the case may be, forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made
available to such Borrower until the date such amount is repaid to the Agent or
the Sub-Agent, as the case may be, at (i) in the case of such Borrower, the
interest rate applicable at the time to Revolving Credit Advances comprising
such Revolving Credit Borrowing and (ii) in the case of such Lender, the Federal
Funds Rate. If such Lender shall repay to the Agent or the Sub-Agent, as the
case may be, such corresponding amount, such amount so repaid shall constitute
such Lender's Revolving Credit Advance as part of such Revolving Credit
Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the Revolving Credit Advance to be
made by it as part of any Revolving Credit Borrowing shall not relieve any other
Lender of its obligation, if any, hereunder to make its Revolving Credit Advance
on the date of such Revolving Credit Borrowing, but no Lender shall be
responsible for the failure of any other Lender to make the Revolving Credit
Advance to be made by such other Lender on the date of any Revolving Credit
Borrowing.
(f) Any Revolving Credit Advance made by any Applicable Lending Office of
any Lender shall be deemed to be an Advance of such Lender for purposes of
calculating the utilization of the Commitment of such Lender hereunder, except
that if such Applicable Lending Office of such Lender is another Lender, such
Revolving Credit Advance shall be deemed to be an Advance of such other Lender
for purposes of calculating the utilization of the Commitments of both such
Lenders hereunder.
SECTION 2.03 Competitive Bid Facility. (a) Each Lender severally agrees
that any Borrower may make Competitive Bid Borrowings under this Section 2.03
from time to time on any Business Day during the period from the Closing Date
until the date occurring 30 days prior to the then scheduled Termination Date in
the manner set forth below; provided that, the aggregate principal amount of the
Competitive Bid Advances comprising each Competitive Bid Borrowing shall not
exceed the aggregate Unused Commitments of the Lenders at such time.
(i) Any Borrower may request a Competitive Bid Borrowing under this
Section 2.03 by delivering to the Agent (and, in the case of a Competitive
Bid Borrowing not consisting of Fixed Rate Advances or Eurocurrency Rate
Advances to be denominated in Dollars, simultaneously to the Sub-Agent), by
telephone or Email, confirmed promptly in writing, or by telecopier, a
notice of a Competitive Bid Borrowing (a "Notice of Competitive Bid
Borrowing"), in substantially the form of Exhibit A-2 hereto, specifying
therein (A) the requested date of such
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proposed Competitive Bid Borrowing (which shall be a Business Day), (B) the
requested aggregate amount and Optional Currency of such proposed
Competitive Bid Borrowing, (C) whether such proposed Competitive Bid
Borrowing shall consist of Fixed Rate Advances or Eurocurrency Rate
Advances, (D) in the case of a Competitive Bid Borrowing consisting of (1)
Eurocurrency Rate Advances, the requested Interest Period for each such
Eurocurrency Rate Advance and (2) Fixed Rate Advances, the requested
maturity date for repayment of each such Fixed Rate Advance (which maturity
date may not be earlier than the date occurring seven days after the date
of such proposed Competitive Bid Borrowing or later than the earlier of (x)
360 days after the date of such proposed Competitive Bid Borrowing and (y)
the Termination Date), (E) the requested interest payment date or dates for
each Competitive Bid Advance comprising part of such proposed Competitive
Bid Borrowing, (F) whether or not the Competitive Bid Advances comprising
such proposed Competitive Bid Borrowing may be prepaid and, if so, whether
with or without penalty, (G) the address and account number of such
Borrower to which the proceeds of such proposed Competitive Bid Borrowing
are to be advanced, (H) whether the proceeds of such Competitive Bid
Borrowing will be used for the purpose of purchasing or carrying margin
stock (within the meaning of Regulation U issued by the Board of Governors
of the Federal Reserve System) and (I) the requested other terms, if any,
to be applicable to such proposed Competitive Bid Borrowing, not later than
(I) 9:00 A.M. (New York City time) at least two Business Days prior to the
date of the proposed Competitive Bid Borrowing, if such Borrower shall
specify in the related Notice of Competitive Bid Borrowing that the rates
of interest to be offered by the Lenders shall be fixed rates per annum
(the Advances comprising any such Competitive Bid Borrowing, which shall be
denominated in Dollars or Euros, being referred to herein as "Fixed Rate
Advances") (II) 9:00 A.M. (New York City time) three Business Days
preceding the date of the proposed Competitive Bid Borrowing in the case of
a Competitive Bid Borrowing consisting of Eurocurrency Rate Advances
denominated in Dollars, and (III) 2:00 P.M. (New York City time) three
Business Days preceding the date of the proposed Competitive Bid Borrowing
in the case of a Competitive Bid Borrowing consisting of Eurocurrency Rate
Advances denominated in Euros. Each Notice of Competitive Bid Borrowing
shall be irrevocable and binding on the Borrower that requested such
Competitive Bid Borrowing. The Agent or the Sub-Agent, as the case may be,
shall in turn promptly notify each Lender of each request for a Competitive
Bid Borrowing received by it from any Borrower by sending such Lender a
copy of the related Notice of Competitive Bid Borrowing.
(ii) Each Lender may, in its sole discretion, elect to irrevocably
offer to make one or more Competitive Bid Advances to the Borrower
requesting the Competitive Bid Advances as part of such proposed
Competitive Bid Borrowing at a rate or rates of interest specified by such
Lender in its sole discretion, by notifying the Agent or the Sub-Agent, as
the case may be (which shall give prompt notice thereof to the Borrower
requesting the Competitive Bid Borrowing), before 12:00 P.M. (New York City
time) one Business Day prior to the date of such proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing consisting of Fixed
Rate Advances, and (B) before 1:00 P.M. (New York City time) two Business
Days prior to the date of the proposed Competitive Bid Borrowing, in the
case of a Competitive Bid Borrowing consisting of Eurocurrency Rate
Advances, of the minimum amount and maximum amount of each Competitive Bid
Advance that such Lender would be willing to make as part of such proposed
Competitive Bid Borrowing (which amounts, subject to the proviso of the
first sentence of this Section 2.03(a), may exceed such Lender's
Commitment, if any), the rate or rates of interest therefor and such
Lender's Applicable Lending Office with respect to such Competitive Bid
Advance; provided that if the Agent, in its capacity as a Lender, shall, in
its sole discretion, elect to make any such offer, it shall notify the
Borrower requesting such Competitive Bid Borrowing of such offer at least
30 minutes before the time and on the date on which notice of such election
is to be given to the Agent or to the Sub-Agent, as the case may be, by the
other Lenders. If any
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Lender shall elect not to make such an offer, such Lender shall so notify
the Agent, before 10:00 A.M. (New York City time) or the Sub-Agent before
12:00 noon (London time), as the case may be, on the date on which notice
of such election is to be given to the Agent or to the Sub-Agent, as the
case may be, by the other Lenders, and such Lender shall not be obligated
to, and shall not, make any Competitive Bid Advance as part of such
proposed Competitive Bid Borrowing; provided that the failure by any Lender
to give such notice shall not cause such Lender to be obligated to make any
Competitive Bid Advance as part of such proposed Competitive Bid Borrowing.
(iii) The Borrower requesting any particular Competitive Bid Borrowing
shall, in turn, before (A) 4:00 P.M. (New York City time) one Business Day
prior to the date of such proposed Competitive Bid Borrowing, in the case
of a Competitive Bid Borrowing consisting of Fixed Rate Advances, and (B)
4:00 P.M. (New York City time) two Business Days prior to the date of such
proposed Competitive Bid Borrowing, in the case of a Competitive Bid
Borrowing consisting of Eurocurrency Rate Advances, either:
(A) cancel such Competitive Bid Borrowing by giving the Agent
notice to that effect; or
(B) accept one or more of the offers made by any Lender or
Lenders pursuant to Section 2.03(a)(ii), in its sole discretion but
subject to the next two succeeding sentences, by giving notice to the
Agent or to the Sub-Agent, as the case may be, of the amount of each
Competitive Bid Advance (which amount shall be equal to or greater
than the minimum amount, and equal to or less than the maximum amount,
notified to such Borrower by the Agent or the Sub-Agent, as the case
may be, on behalf of such Lender for such Competitive Bid Advance
pursuant to Section 2.03(a)(ii)) to be made by each Lender as part of
such Competitive Bid Borrowing, and reject any remaining offers made
by Lenders pursuant to Section 2.03(a)(ii) by giving the Agent or the
Sub-Agent, as the case may be, notice to that effect; provided,
however, that such Borrower may not accept offers that, in the
aggregate, exceed the amount of the proposed Competitive Bid Borrowing
specified in the related Notice of Competitive Bid Borrowing. The
Borrower that requested such Competitive Bid Borrowing shall accept
the offers made by any Lender or Lenders to make Competitive Bid
Advances in order of the lowest to the highest rates of interest
offered by such Lenders for a particular Competitive Bid Borrowing. If
two or more Lenders have offered the same interest rate for a
particular Competitive Bid Borrowing, the amount to be borrowed at
such interest rate will be allocated among such Lenders ratably
according to the amount that each such Lender offered at such interest
rate.
(iv) If the Borrower that requested any particular Competitive Bid
Borrowing notifies the Agent or the Sub-Agent, as the case may be, that
such Competitive Bid Borrowing is cancelled pursuant to Section
2.03(a)(iii)(A), the Agent or the Sub-Agent, as the case may be, shall give
prompt notice thereof to each of the Lenders and such Competitive Bid
Borrowing shall not be made.
(v) If the Borrower that requested any particular Competitive Bid
Borrowing accepts one or more of the offers made by any Lender or Lenders
pursuant to Section 2.03(a)(iii)(B) in respect of such Competitive Bid
Borrowing, the Agent or the Sub-Agent, as the case may be, shall in turn
promptly notify (A) each Lender that has made an offer as described in
Section 2.03(a)(ii) of the date and the aggregate amount of such
Competitive Bid Borrowing and whether or not any offer or offers made by
such Lender pursuant to Section 2.03(a)(ii) have been
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accepted by such Borrower and (B) each Lender that is to make a Competitive
Bid Advance as part of such Competitive Bid Borrowing, (1) of the amount of
each Competitive Bid Advance to be made by such Lender as part of such
Competitive Bid Borrowing and (2) upon receipt, that the Agent or the
Sub-Agent, as the case may be, has received forms of documents appearing to
fulfill the applicable conditions set forth in Article III. Each Lender
that is to make a Competitive Bid Advance as part of any Competitive Bid
Borrowing shall, before 12:00 Noon (New York City time) on the date of such
Competitive Bid Borrowing specified in the notice received from the Agent
or from the Sub-Agent, as the case may be, pursuant to subclause (v)(A) of
the immediately preceding sentence or any later time when such Lender shall
have received notice from the Agent or from the Sub-Agent, as the case may
be, pursuant to subclause (v)(B)(2) of the immediately preceding sentence,
make available for the account of its Applicable Lending Office to the
Agent at the applicable Agent's Account, in same day funds, such Lender's
portion of such Competitive Bid Borrowing. Upon fulfillment of the
applicable conditions set forth in Article III and after receipt by the
Agent of such funds, the Agent will make such funds available to the
Borrower that requested such Borrowing at the address and the account
number specified by such Borrower in the related Notice of Competitive Bid
Borrowing or, if no such address and account number are specified in the
related Notice of Competitive Bid Borrowing, at the Agent's address
referred to in Section 8.02. Promptly after (x) each Competitive Bid
Borrowing, the Agent will notify each Lender of the amount of such
Competitive Bid Borrowing, the corresponding Competitive Bid Reduction
resulting therefrom and the dates upon which such Competitive Bid Reduction
commenced and will terminate and (y) the prepayment of any Competitive Bid
Borrowing by the applicable Borrower, the Agent will notify each Lender of
the amount and date of each such prepayment and the amount, if any, of the
corresponding Competitive Bid Reduction remaining after giving effect
thereto.
(vi) If the Borrower that requested any applicable Competitive Bid
Borrowing notifies the Agent or the Sub-Agent, as the case may be, that it
accepts one or more of the offers made by any Lender or Lenders pursuant to
Section 2.03(a)(iii)(B), such notice of acceptance shall be irrevocable and
binding on such Borrower. Such Borrower shall indemnify each Lender against
any loss, cost or expense incurred by such Lender as a result of any
failure to fulfill on or before the date specified in such Notice of
Competitive Bid Borrowing for such Competitive Bid Borrowing the applicable
conditions set forth in Article III, including, without limitation, any
loss (excluding loss of anticipated profits), cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund the Competitive Bid Advance to be made by
such Lender as part of such Competitive Bid Borrowing when such Competitive
Bid Advance, as a result of such failure, is not made on such date.
(b) Each Competitive Bid Borrowing shall be in an aggregate amount of not
less than $10,000,000, in respect of Revolving Credit Advances denominated in
Dollars, or (euro)10,000,000, in respect of Revolving Credit Advances
denominated in Euros and, following the making of each Competitive Bid
Borrowing, the Borrowers shall be in compliance with the limitation set forth in
the proviso to the first sentence of Section 2.03(a).
(c) Within the limits and on the conditions set forth in this Section 2.03,
any Borrower may from time to time borrow under Section 2.03(a), repay pursuant
to Section 2.06(b) or prepay pursuant to Section 2.03(d), and reborrow under
Section 2.03(a).
(d) The Borrower to which any particular Competitive Bid Borrowing is made
shall have no right to prepay the principal amount of any Competitive Bid
Advance (or any portion thereof) unless, and then only on the terms, specified
by such Borrower for such Competitive Bid Advance in the related
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Notice of Competitive Bid Borrowing delivered pursuant to Section 2.03(a)(i)
and, if applicable, set forth in the Competitive Bid Note evidencing such
Competitive Bid Advance.
(e) The Borrower to which any particular Competitive Bid Borrowing is made
shall pay interest on the unpaid principal amount of each Competitive Bid
Advance from the date of such Competitive Bid Advance to the date the principal
amount of such Competitive Bid Advance is repaid in full, at the rate of
interest for and in the Optional Currency of such Competitive Bid Advance
specified by the Lender making such Competitive Bid Advance in its notice with
respect thereto delivered pursuant to Section 2.03(a)(ii), payable on the
interest payment date or dates specified by such Borrower for such Competitive
Bid Advance in the related Notice of Competitive Bid Borrowing delivered
pursuant to Section 2.03(a)(i) and, if applicable, provided in the Competitive
Bid Note evidencing such Competitive Bid Advance.
(f) Each Borrower agrees that upon notice by any Lender to such Borrower
(with a copy of such notice to the Agent) to the effect that a promissory note
or other evidence of indebtedness is required or appropriate in order for such
Lender to evidence (whether for purposes of pledge, enforcement or otherwise)
any Competitive Bid Advance owing to, or to be made by, such Lender as part of a
Competitive Bid Borrowing, such Borrower shall promptly execute and deliver to
such Lender a separate promissory note, in substantially the form of Exhibit I-2
hereto (each, a "Competitive Bid Note"), payable to the order of such Lender in
a principal amount equal to the amount of indebtedness of such Borrower
resulting from such Competitive Bid Advance.
SECTION 2.04 Facility Fee. (a) The Initial Borrower agrees to pay to the
Agent for the account of each Lender a facility fee in Dollars on the aggregate
amount of such Lender's Commitment, from the Closing Date in the case of each
Initial Lender and from the effective date specified in the Assignment and
Acceptance pursuant to which it became a Lender in the case of each other Lender
until the Termination Date, at a rate per annum equal to 0.025% per annum,
payable in arrears quarterly on the last day of each March, June, September and
December, commencing September 30, 2005, and on the Termination Date.
(b) Unless the Initial Borrower shall have notified the Agent in writing on
or before 9:00 A.M. (New York City time) on the Business Day immediately
preceding the last day of each March, June, September and December, commencing
September 30, 2005, and the Termination Date, that it will pay, in cash, the
Facility Fee that is due and payable by it on such date, the Lenders will be
deemed to have made Revolving Credit Advances on such date in an amount equal to
the Facility Fee that would otherwise be due and payable on such date, which
Revolving Credit Advances shall, unless the Initial Borrower has otherwise
notified the Agent in writing on or before such Business Day, be a Eurocurrency
Rate Advance denominated in Dollars having an initial Interest Period of one
month. Each Revolving Credit Advance made pursuant to this Section 2.04(a)(ii)
shall be deemed (A) to have made pursuant to the Commitments and shall be
subject to the limitation that the aggregate outstanding principal amount of the
Revolving Credit Advances may at no time exceed the Commitments then in effect
and (B) not to have been used for the purpose of purchasing or carrying margin
stock (within the meaning of Regulation U issued by the Board of Governors of
the Federal Reserve System).
SECTION 2.05 Termination or Reduction of the Commitments. (a) Optional. The
Initial Borrower shall have the right, upon at least three Business Days' notice
to the Agent, to terminate in whole or reduce ratably in part the Unused
Commitments of the Lenders, provided that each partial reduction shall be in the
aggregate amount of $10,000,000.
(b) Mandatory. (i) The Commitments shall automatically terminate on the
Termination Date.
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(ii) In the event the Transaction Termination Date occurs, the Commitments
shall be reduced to zero on the date which is 30 Business Days after the
Transaction Termination Date.
(iii) The Commitments shall be automatically reduced on each date on which
the prepayment of Advances is required to be made pursuant to Section
2.10(b)(iii) by an amount equal to 75% of the amount of the net cash proceeds
received by the Borrowers from any issuance of any publicly traded bonds,
debentures, or similar debt securities described in such Section 2.10(b)(iii).
SECTION 2.06 Repayment of Advances. (a) Revolving Credit Advances. Each
Borrower shall repay to the Agent for the ratable account of the Lenders on the
Termination Date the aggregate principal amount of all Revolving Credit Advances
made to it that are then outstanding.
(b) Repayment of Competitive Bid Advances. Each Borrower shall repay to the
Agent, for the account of each Lender that has made a Competitive Bid Advance,
the aggregate outstanding principal amount of each Competitive Bid Advance made
to such Borrower and owing to such Lender on the earlier of (i) the maturity
date therefor, in the case of any such Competitive Bid Advance that is a Fixed
Advance, or the last day of the Interest Period therefor, in the case of any
such Competitive Bid Advance that is a Eurocurrency Rate Advance, in each case
as specified in the related Notice of Competitive Bid Borrowing delivered
pursuant to Section 2.03(a)(i) and, if applicable, provided in the Competitive
Bid Note evidencing such Competitive Bid Advance, and (ii) the Termination Date.
SECTION 2.07 Interest on Revolving Credit Advances. (a) Scheduled Interest.
Subject to the provisions of Section 2.07(c), each Borrower shall pay interest
on the unpaid principal amount of each Revolving Credit Advance made to it that
is owing to each Lender from the date of such Revolving Credit Advance until
such principal amount shall be paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Revolving Credit
Advance is a Base Rate Advance, a rate per annum equal at all times to the
sum of (x) the Base Rate in effect from time to time plus (y) the
Applicable Margin in effect from time to time plus (z) the Utilization Fee,
if any, in effect from time to time, payable in arrears on each Interest
Payment Date with respect to such Base Rate Advance.
(ii) Eurocurrency Rate Advances. During such periods as such Revolving
Credit Advance is a Eurocurrency Rate Advance, a rate per annum equal at
all times during each Interest Period for such Advance to the sum of (x)
the Eurocurrency Rate for such Interest Period for such Advance plus (y)
the Applicable Margin in effect from time to time plus (z) the Utilization
Fee, if any, in effect from time to time, payable in arrears on each
Interest Payment Date with respect to such Eurocurrency Rate Advance.
(b) Default Interest. Each Borrower shall pay interest on:
(i) any portion of the unpaid principal amount of each Revolving
Credit Advance made to it that is owing to each Lender that is not paid
when due, from the date such amount shall be due until such amount shall be
paid in full, payable in arrears on the date such amount shall be paid in
full and on demand, at a rate per annum equal at all times to 2% per annum
above the rate per annum required to be paid on such Revolving Credit
Advance pursuant to clause (a)(i) or (a)(ii) above, as the case may be;
(ii) any portion of the unpaid principal amount of each Competitive
Bid Advance made to such Borrower and owing to any Lender, payable in
arrears on the date or dates interest is payable on such Competitive Bid
Advance, at a rate per annum equal at all times to 2% per
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annum above the rate per annum required to be paid on such Competitive Bid
Advance in the offer made by such Lender pursuant to Section 2.03(a)(ii)
and accepted by such Borrower under Section 2.03(a)(v), and
(iii) to the fullest extent permitted by law, the amount of any
interest, fee or other amount payable hereunder that is not paid when due,
from the date such amount shall be due until such amount shall be paid in
full, payable in arrears on the date such amount shall be paid in full and
on demand, at a rate per annum equal at all times to 2% per annum above the
rate per annum required to be paid on Base Rate Advances pursuant to clause
(a)(i) above.
(c) Capitalization of Interest. Anything contained in this Agreement to the
contrary notwithstanding, unless the appropriate Borrower has notified the Agent
in writing on or before 9:00 A.M. (New York City time) on the Business Day
immediately preceding any Interest Payment Date or date of a prepayment pursuant
to Section 2.10(b)(i), that it will pay, in cash, the interest applicable to any
Revolving Credit Advance, including any applicable Utilization Fee, that is due
and payable by it on such Interest Payment Date in accordance with Section
2.07(a) or on such prepayment date in accordance with Section 2.10(b)(i), as
applicable, the Lenders will be deemed to have made Revolving Credit Advances on
such Interest Payment Date or prepayment date, as applicable, in an amount equal
to the aggregate amount of interest, including any applicable Utilization Fee,
that would otherwise be due and payable on such date, which Revolving Credit
Advance shall, unless such Borrower has otherwise notified the Agent in writing
on or before such Business Day, (i) be of the same Type and Optional Currency as
the Advance (the "Reference Advance") in respect of which such interest
(including any applicable Utilization Fee) shall have accrued (in each case
after giving effect to any Conversion of the Reference Advance on such Interest
Payment Date), and (ii) if such Revolving Credit Advance is a Eurocurrency Rate
Advance, have an initial Interest Period of the same duration as the Interest
Period commencing on such Interest Payment Date with respect to the Reference
Advance. Each Revolving Credit Advance made pursuant to this Section 2.07(c)
shall be deemed (A) to have been made pursuant to the Commitments and shall be
subject to the limitation that the aggregate outstanding principal amount of the
Advances may at no time exceed the Commitments then in effect, and (B) to have
been used for the purpose of purchasing or carrying margin stock (within the
meaning of Regulation U issued by the Board of Governors of the Federal Reserve
System) if the related Reference Advance was used for the purpose of purchasing
or carrying margin stock.
SECTION 2.08 Interest Rate Determination. (a) Each Reference Bank agrees to
furnish to the Agent timely information for the purpose of determining each
Eurocurrency Rate. If any one or more of the Reference Banks shall not furnish
such timely information to the Agent for the purpose of determining any such
interest rate, the Agent shall determine such interest rate on the basis of
timely information furnished by the remaining Reference Banks. The Agent shall
give prompt notice to each of the Borrowers and the Lenders of the applicable
interest rate determined by the Agent for purposes of Section 2.07(a)(i) or
(ii), and the rate, if any, furnished by each Reference Bank for the purpose of
determining the interest rate under Section 2.07(a)(ii).
(b) If, with respect to any Eurocurrency Rate Advances, the Required
Lenders in good faith notify the Agent that the Eurocurrency Rate for any
Interest Period for such Advances will not adequately reflect the cost to such
Required Lenders of making, funding or maintaining their respective Eurocurrency
Rate Advances for such Interest Period, the Agent shall forthwith so notify each
of the Borrowers and the Lenders, whereupon (i)(A) each Eurocurrency Rate
Advance denominated in Dollars will automatically Convert into Base Rate
Advances, and (B) each Eurocurrency Rate Advance denominated in Euros will
automatically be exchanged for an Equivalent of Dollars and Convert into Base
Rate Advances, and (ii) the obligation of the Lenders to make, or to Convert
Advances into, Eurocurrency Rate Advances
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shall be suspended until the Agent shall notify each of the Borrowers and the
Lenders that the circumstances causing such suspension no longer exist.
(c) If any Borrower shall fail to select the duration of any Interest
Period for any Eurocurrency Rate Advances in accordance with the provisions
contained in the definition of "Interest Period" in Section 1.01, the Agent will
forthwith so notify each of the Borrowers and the Lenders and such Advances will
automatically, on the last day of the then existing Interest Period therefor,
Convert into Eurocurrency Rate Advances denominated in the same Optional
Currency and having an Interest Period of one week.
(d) On the date on which the aggregate unpaid principal amount of
Eurocurrency Rate Advances comprising any Borrowing shall be reduced, by payment
or prepayment or otherwise, to less than $10,000,000, in respect of Advances
denominated in Dollars, or (euro)10,000,000, in respect of Advances denominated
in Euros, such Advances shall automatically (i) if such Eurocurrency Rate
Advances are denominated in Dollars, Convert into Base Rate Advances and (ii) if
such Eurocurrency Rate Advances are denominated in Euros, be exchanged for an
Equivalent amount of Dollars and Convert into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any Event of Default,
(i) each Eurocurrency Rate Advance will, upon the written request of the Agent
(at the request of the Required Lenders), on the last day of the then existing
Interest Period therefor, (A) if such Eurocurrency Rate Advance is denominated
in Dollars, be Converted into a Base Rate Advance and (B) if such Eurocurrency
Rate Advance is denominated in Euros, be exchanged for an Equivalent amount of
Dollars and be Converted into a Base Rate Advance and (ii) the obligation of the
Lenders to make, or to Convert Advances into, Eurocurrency Rate Advances shall
be suspended.
(f) If either, with respect to Eurocurrency Rate Advances denominated in
Dollars, the Moneyline Telerate Markets Page 3750, or, with respect to
Eurocurrency Rate Advances denominated in Euros, the Page 248 of the Moneyline
Telerate Service, is unavailable and, in each such case, fewer than two
Reference Banks furnish timely information to the Agent for determining the
applicable Eurocurrency Rate,
(i) the Agent shall forthwith notify the applicable Borrower and the
Lenders that the interest rate cannot be determined for such Eurocurrency
Rate Advances,
(ii) each such Advance will automatically, on the last day of the then
existing Interest Period therefor, (A) if such Eurocurrency Rate Advance is
denominated in Dollars, Convert into a Base Rate Advance and (B) if such
Eurocurrency Rate Advance is denominated in Euros, be prepaid by the
applicable Borrower or be automatically exchanged for an Equivalent amount
of Dollars and be Converted into a Base Rate Advance (or if such Advance is
then a Base Rate Advance, will continue as a Base Rate Advance), and
(iii) the obligation of the Lenders to make Eurocurrency Rate Advances
or to Convert Advances into Eurocurrency Rate Advances shall be suspended
until the Agent shall notify each of the Borrowers and the Lenders that the
circumstances causing such suspension no longer exist.
SECTION 2.09 Optional Conversion of Advances. Any Borrower may subject to
the provisions of Sections 2.08 and 2.12, Convert all or any portion of
Revolving Credit Advances of one Type made to it comprising the same Borrowing
into Advances of the other Type; provided, however, that (a) any such Conversion
of (i) Base Rate Advances into Eurocurrency Advances denominated in Dollars or
of Eurocurrency Advances of one Interest Period into Eurocurrency Advances
denominated in Dollars
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and of another Interested Period shall be made on notice received no later than
9:00 A.M. (New York City time) on the Business Day immediately preceding the
date of the proposed Conversion, or (ii) in all other cases, shall be made on
notice received no later than 9:00 A.M. (New York City time) on the Business Day
of the proposed Conversion, (b) in the case of any Conversion of Eurocurrency
Rate Advances denominated in Dollars into Base Rate Advances other than on the
last day of an Interest Period therefor, the Borrower requesting such Conversion
shall be obligated to reimburse the Lenders in respect thereof pursuant to
Section 8.04(c), and (c) any Conversion of Base Rate Advances into Eurocurrency
Rate Advances shall be in an amount not less than $10,000,000. Each such notice
of a Conversion shall, within the restrictions specified above, specify (i) the
date of such Conversion, (ii) the Dollar denominated Advances to be Converted,
and (iii) if such Conversion is into Eurocurrency Rate Advances, the duration of
the initial Interest Period for each such Advance. Each notice of Conversion
shall be irrevocable and binding on the Borrower giving such notice.
SECTION 2.10 Prepayments. (a) Optional. Each Borrower may, upon at least
three Business Days notice to the Agent stating the proposed date and aggregate
principal amount of the prepayment, and if such notice is given such Borrower
shall, prepay the outstanding principal amount of the Advances comprising part
of the same Borrowing in whole or ratably in part, together with accrued
interest to the date of such prepayment on the principal amount prepaid;
provided, however, that (i) each partial prepayment shall be in an aggregate
principal amount of $10,000,000, in respect of each prepayment of Advances
denominated in Dollars, or (euro)10,000,000, in respect of each prepayment of
Advances denominated in Euros, and in an integral multiples of $1,000,000 or
(euro)1,000,000, as applicable, in excess thereof, and (ii) in the event of any
such prepayment of a Eurocurrency Rate Advance, such Borrower shall be obligated
to reimburse the Lenders in respect thereof pursuant to Section 8.04(c).
Notwithstanding anything in the previous sentence to the contrary, no Borrower
may prepay any Competitive Bid Advances other than in accordance with Section
2.03(d).
(b) Mandatory. (i) If, on any date, the Agent notifies the Initial Borrower
that, on any Interest Payment Date, the sum of (A) the aggregate principal
amount of all Advances denominated in Dollars plus (B) the Equivalent in Dollars
(determined on the Business Day immediately preceding such Interest Payment
Date) of the aggregate principal amount of all Advances denominated in Euros
then outstanding exceeds 110% of the aggregate Commitments of the Lenders on
such date, one or more of the Borrowers (as determined by the Initial Borrower)
shall, as soon as practicable and in any event within five Business Days after
receipt of such notice, subject to the proviso to this sentence below, prepay
the outstanding principal amount of any Advances owing by such Borrowers in an
aggregate amount sufficient to reduce such sum to an amount not to exceed 100%
of the aggregate Commitments of the Lenders on such date, together with any
interest accrued to the date of such prepayment on the aggregate principal
amount of Advances prepaid; provided, however, that if the aggregate principal
amount of Base Rate Advances outstanding at the time of such required prepayment
is less than the amount of such required prepayment, the portion of such
required prepayment in excess of the aggregate principal amount of Base Rate
Advances then outstanding shall be deferred until the earliest to occur of the
last day of the Interest Period of the outstanding Eurocurrency Rate Advances in
an aggregate amount equal to the excess of such required prepayment. The Agent
shall give prompt notice of any prepayment required under this Section
2.10(b)(i) to each of the Borrowers and the Lenders, and shall provide prompt
notice to each of the Borrowers of any such notice of required prepayment
received by it from any Lender.
(ii) On each Business Day, each of the Borrowers shall repay the
outstanding Advances by an amount equal to the excess of the outstanding
principal amount of the Advances over the aggregate Commitments after giving
effect to any reduction of the Commitments pursuant to Section 2.05 on the
immediately preceding Business Day.
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(iii) Each Borrower shall prepay an aggregate principal amount of the
Advances comprising part of the same Borrowing in an amount equal to 75% of the
amount of net cash proceeds received by such Borrower from each issuance in the
U.S. or European capital markets of publicly traded bonds, debentures, or
similar debt securities having a maturity in excess of one year.
SECTION 2.11 Increased Costs. (a) If, due to either (i) the introduction of
or any change in or in the interpretation of any law or regulation enacted or
issued after the date of this Agreement or (ii) the compliance with any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law) issued after the date of this
Agreement, there shall be any material increase in the cost to any Lender of
agreeing to make or making, funding or maintaining Eurocurrency Rate Advances
(excluding for purposes of this Section 2.11 any such increased costs resulting
from (i) Taxes (as to which Section 2.14 shall govern) and (ii) changes in the
basis of taxation of overall net income or overall gross income by the United
States or by the foreign jurisdiction, state or any political subdivision
thereof under the laws of which such Lender has any present or former
connection, then the applicable Borrower shall from time to time, within 30 days
of written demand by such Lender (with a copy of such demand to the Agent), pay
to the Agent for the account of such Lender additional amounts sufficient to
compensate such Lender for such increased cost. A certificate as to the amount
of such increased cost in reasonable detail and stating the basis upon which
such amount has been calculated and certifying that such Lender's method of
allocating such costs is fair and reasonable and that such Lender's demand for
payment of such costs hereunder is not inconsistent with its treatment of other
borrowers which, as a credit matter, are similarly situated to such Borrower and
which are subject to similar provisions, submitted to such Borrower and the
Agent by such Lender, shall be conclusive and binding for all purposes, absent
error in the calculation of such amount.
(b) If any Lender reasonably determines that compliance with any law or
regulation enacted or issued after the date of this Agreement, or any guideline
or request from any central bank or other governmental authority (whether or not
having the force of law) issued after the date of this Agreement, affects or
would affect the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender and that the amount of such
capital is materially increased by or based upon the existence of such Lender's
commitment to lend hereunder and other commitments of this type, then, within 30
days of written demand by such Lender (with a copy of such demand to the Agent),
the applicable Borrower shall pay to the Agent for the account of such Lender,
from time to time as specified by such Lender, additional amounts sufficient to
compensate such Lender or such corporation in the light of such circumstances,
to the extent that such Lender reasonably determines such increase in capital to
be allocable to the existence of such Lender's commitment to lend hereunder. A
certificate as to the amount of such increased cost in reasonable detail and
stating the basis upon which such amount has been calculated and certifying that
such Lender's method of allocating such costs is fair and reasonable and that
such Lender's demand for payment of such costs hereunder is not inconsistent
with its treatment of other borrowers which, as a credit matter, are similarly
situated to such Borrower and which are subject to similar provisions, submitted
to such Borrower and the Agent by such Lender, shall be conclusive and binding
for all purposes, absent error in the calculation of such amount.
(c) Before making any demand under this Section 2.11, each Lender agrees to
use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to designate a different Applicable Lending Office if
the making of such a designation would avoid the need for, or reduce the amount
of, such increased cost and would not, in the reasonable judgment of such
Lender, be otherwise disadvantageous to such Lender.
(d) If any Lender shall subsequently recoup any costs (other than from a
Borrower) for which such Lender has theretofore been compensated by a Borrower
under this Section 2.11, such Lender shall remit to such Borrower an amount
equal to the amount of such recoupment.
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SECTION 2.12 Illegality. Notwithstanding any other provision of this
Agreement, if any Lender shall notify the Agent that the introduction of or any
change in or in the interpretation of any law or regulation makes it unlawful,
or any central bank or other governmental authority asserts that it is unlawful,
for any Lender or its Eurocurrency Lending Office to perform its obligations
hereunder to make Eurocurrency Rate Advances in Dollars or Euros or to fund or
maintain Eurocurrency Rate Advances in Dollars or Euros hereunder, (a) each
Eurocurrency Rate Advance, as the case may be, will automatically, upon such
demand, (i) if such Eurocurrency Rate Advance is denominated in Dollars, Convert
into a Base Rate Advance and (ii) if such Eurocurrency Rate Advance is
denominated in Euros, be exchanged for an Equivalent amount of Dollars and
Convert into a Base Rate Advance, and (b) the obligation of the Lenders to make
Eurocurrency Rate Advances or to Convert Advances into Eurocurrency Rate
Advances shall be suspended until the Agent shall notify each of the Borrowers
and the Lenders that the circumstances causing such suspension no longer exist;
provided, however, that before making any such demand, each Lender agrees to use
reasonable efforts (consistent with its internal policy and legal and regulatory
restrictions) to designate a different Eurocurrency Lending Office if the making
of such a designation would allow such Lender or its Eurocurrency Lending Office
to continue to perform its obligations to make Eurocurrency Rate Advances or to
continue to fund or maintain Eurocurrency Rate Advances and would not, in the
judgment of such Lender, be otherwise disadvantageous to such Lender.
SECTION 2.13 Payments and Computations. (a) Each Borrower shall make each
payment hereunder and under the Notes, if any, with respect to principal of,
interest on, and other amounts relating to, Advances denominated in Dollars,
irrespective of any right of counterclaim or set-off, not later than 11:00 A.M.
(New York City time) on the day when due in Dollars to the Agent, by deposit of
such funds to the applicable Agent's Account in same day funds. Each Borrower
shall make each payment hereunder and under the Notes, if any, irrespective of
any right of counterclaim or set-off, with respect to principal of, interest on,
and other amounts relating to, Advances denominated in Euros, not later than
11:00 A.M. (London time) on the day when due in Euros to the Agent, by deposit
of such funds to the applicable Agent's Account in same day funds. The Agent
will promptly thereafter cause to be distributed like funds relating to the
payment of principal or interest or facility fees ratably (other than amounts
payable pursuant to Section 2.03, 2.11, 2.14 or 8.04(c)) to the Lenders for the
account of their respective Applicable Lending Offices, and like funds relating
to the payment of any other amount payable to any Lender to such Lender for the
account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon its acceptance of an
Assignment and Acceptance and recording of the information contained therein in
the Register pursuant to Section 8.07(c), from and after the effective date
specified in such Assignment and Acceptance, the Agent shall make all payments
hereunder and under the Notes, if any, in respect of the interest assigned
thereby to the Lender assignee thereunder, and the parties to such Assignment
and Acceptance shall make all appropriate adjustments in such payments for
periods prior to such effective date directly between themselves.
(b) All computations of interest based on the Base Rate shall be made by
the Agent on the basis of a year of 365 or 366 days, as the case may be, and all
computations of interest based on the Eurocurrency Rate or the Federal Funds
Rate and of facility fees shall be made by the Agent or the Sub-Agent, as the
case may be, on the basis of a year of 360 days, in each case for the actual
number of days (including the first day but excluding the last day) occurring in
the period for which such interest or facility fees are payable. Each
determination by the Agent of an interest rate hereunder shall be conclusive and
binding for all purposes, absent manifest error.
(c) Whenever any payment hereunder or under the Notes, if any, shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or facility fee, as
the case may be; provided, however, that, if such extension would cause payment
of interest on or
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principal of Eurocurrency Rate Advances to be made in the next following
calendar month, such payment shall be made on the next preceding Business Day.
(d) Unless the Agent or the Sub-Agent, as the case may be, shall have
received notice from the appropriate Borrower prior to the date on which any
payment is due to the Lenders hereunder that such Borrower will not make such
payment in full, the Agent or the Sub-Agent, as the case may be, may assume that
such Borrower has made such payment in full to the Agent or to the Sub-Agent, as
the case may be, on such date, and the Agent or the Sub-Agent, as the case may
be, may, in reliance upon such assumption, cause to be distributed to each
Lender on such due date an amount equal to the amount then due such Lender. If
and to the extent such Borrower shall not have so made such payment in full to
the Agent or to the Sub-Agent, as the case may be, each Lender shall repay to
the Agent or to the Sub-Agent, as the case may be, forthwith on demand such
amount distributed to such Lender together with interest thereon, for each day
from the date such amount is distributed to such Lender until the date such
Lender repays such amount to the Agent or to the Sub-Agent, as the case may be,
at (i) the Federal Funds Rate, in the case of Advances denominated in Dollars,
or (ii) the cost of funds incurred by the Sub-Agent, in respect of such amount
in the case of Advances denominated in Euros.
SECTION 2.14 Taxes. (a) Each Borrower shall only be required to pay or
reimburse any Lender or the Agent for present or future taxes, levies, imposts,
deductions, charges or withholdings arising from or in connection with any
payments made by any Borrower under this Agreement or any of the other Loan
Documents, or any liabilities with respect to the foregoing (collectively,
"Taxes"), other than Excluded Taxes. If any Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder or under any of
the other Loan Documents to any Lender or the Agent, (i) such Borrower shall
make such deductions in respect of Taxes, (ii) such Borrower shall pay the full
amount deducted in respect of Taxes to the relevant taxation authority or other
governmental or regulatory authority in accordance with applicable law, and
(iii) to the extent, there is an increase in any Taxes (other than Excluded
Taxes) imposed on such Lender or the Agent as a result of this Agreement or any
of the other Loan Documents (such increased amount being the "Non-Excluded
Taxes" of such Lender or the Agent), the sum payable by such Borrower shall be
increased as may be necessary so that after making all required deductions of
Non-Excluded Taxes such Lender or the Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made
in respect of Non-Excluded Taxes. Within 30 days after the date of any payment
of Non-Excluded Taxes by any Borrower, such Borrower shall furnish to the Agent,
at its address referred to in Section 8.02, the original or a copy of a receipt
evidencing such payment. For purposes of this section 2.14, the term "Change in
Law" shall mean the adoption of any law, rule, regulation, court decision or
precedential administrative guidance after the date of this Agreement.
(b) Each of the Borrowers shall indemnify each Lender and the Agent for,
and hold each of them harmless against, the full amount of Non-Excluded Taxes
paid by such Lender or the Agent, as the case may be. This indemnification shall
be made within 90 days from the date on which such Lender or the Agent, as the
case may be, makes written demand therefor and provides adequate documentary
evidence of payment thereof.
(c) Each Lender and the Agent shall deliver or cause to be delivered to any
requesting Borrower required to withhold under section 1441 or 1442 or comply
with any information reporting or backup withholding requirements of the U.S.
Internal Revenue Code of 1986, as amended, or the regulations thereunder, the
following properly completed and duly executed documents:
(i) if such Lender or the Agent is not a United States Person, a
complete and executed (A) U.S. Internal Revenue Form W-8BEN with Part II
completed in which Lender claims and validly establishes the benefits of a
tax treaty with the United States providing for a
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zero or reduced rate of withholding (or any successor forms thereto),
including all appropriate attachments or (B) a U.S. Internal Revenue
Service Form W-8ECI (or any successor forms thereto);
(ii) if such Lender or the Agent is a natural person, a complete and
executed (A) U.S. Internal Revenue Service Form W-8BEN (or any successor
forms thereto) and a certificate, in substantially the form of Exhibit H
hereto (a "Section 2.14 Certificate"), or (B) U.S. Internal Revenue Service
Form W-9 (or any successor forms thereto);
(iii) if such Lender or the Agent is organized under the laws of the
United States, any State thereof, or the District of Columbia, (A) a
complete and executed U.S. Internal Revenue Service Form W-9 (or any
successor forms thereto), including all appropriate attachments or (B) if
such Person is disregarded for federal income tax purposes, the documents
that would be required under clause (i), (ii), this clause (iii), (iv), (v)
or (vi) of this Section 2.14(c) with respect to its beneficial owner as if
such beneficial owner were a Lender;
(iv) if such Lender or the Agent (A) is not organized under the laws
of the United States, any State thereof, or the District of Columbia and
(B) is treated as a corporation for U.S. federal income tax purposes, a
complete and executed U.S. Internal Revenue Service Form W-8BEN
establishing a zero rate of withholding (or any successor forms thereto)
and a Section 2.14 Certificate;
(v) if such Lender or the Agent (A) is treated as a partnership or
other non-corporate entity, and (B) is not organized under the laws of the
United States, any State thereof, or the District of Columbia, (1) a
complete and executed U.S. Internal Revenue Service Form W-8IMY (or any
successor forms thereto) (including all required documents and attachments)
and (2) a Section 2.14 Certificate, and, without duplication, with respect
to each of its beneficial owners and the beneficial owners of such
beneficial owners looking through chains of owners to individuals or
entities that are treated as corporations for U.S. federal income tax
purposes (all such owners, "beneficial owners"), the documents that would
be required by clause (i), (ii), (iii), (iv), this clause (v) and/or clause
(vi) of this Section 2.14(c) with respect to each such beneficial owner if
such beneficial owner were Lender, provided, however, that no such
documents will be required with respect to a beneficial owner to the extent
the actual Lender or the Agent is determined to be in compliance with the
requirements for certification on behalf of its beneficial owner as may be
provided in applicable U.S. Treasury Regulations, or the requirements of
this clause (v) of Section 2.14(c) are otherwise determined to be
unnecessary (all such determinations under this clause (v) of Section
2.14(c) to be made in the sole discretion of the Initial Borrower); or
(vi) (A) if such Lender or the Agent is disregarded for U.S. federal
income tax purposes, such Person shall deliver the document that would be
required by this clause (vi), or by clause (i), (ii), (iii), (iv), or (v)
of Section 2.14(c) with respect to its sole owner if such sole owner were
such Lender or the Agent, or (B) if such Lender or the Agent is not a
United States person and is acting in the capacity as an "intermediary" (as
defined in U.S. Treasury Regulations), (1) a complete and executed U.S.
Internal Revenue Service Form W-8IMY (or any successor form thereto)
(including all required documents and attachments), and (2) if such
intermediary is a "non-qualified intermediary" (as defined in U.S. Treasury
Regulations), from each person upon whose behalf the "non-qualified
intermediary" is acting, the documents that would be required by clause
(i), (ii), (iii), (iv), (v) or this clause (vi) of Section 2.14(c) with
respect to each such Person if each such Person were Lender.
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In addition, each Lender or the Agent, shall provide any requesting Borrower
with such other forms, certificates and documentation that such Lender or the
Agent is legally entitled to furnish as may be necessary or appropriate to
obtain any reduction of or exemption from any withholding or other Tax imposed
by any governmental authority on payments made by such Borrower under any Loan
Document.
Each Lender and the Agent shall provide the appropriate forms, certificates and
other documentation described in this Section 2.14(c) (x) prior to becoming a
party to this Agreement; (y) upon a Change in Law or circumstances requiring or
making appropriate a new or additional form, certificate or documentation; and
(z) whenever reasonably requested by any of the Borrowers or the Agent. If the
forms referred to above in this Section 2.14(c) that are provided by a Lender at
the time such Lender becomes a party to this Agreement indicate a withholding
tax rate in excess of zero on payments under this Agreement to be received by
such Lender from a Borrower organized in a Covered Jurisdiction, such
withholding tax at such rate shall be treated as Excluded Taxes unless and until
such Lender provides all such forms, duly completed and delivered, establishing
that a lesser rate applies, whereupon such withholding tax at such lesser rate
shall be considered Excluded Taxes solely for the periods governed by such form.
If the forms referred to above in this Section 2.14(c) that are provided by a
Lender at the time such Lender becomes a party to this Agreement indicate a
withholding tax rate in excess of zero on payments under this Agreement to be
received by such Lender from a Borrower that is not organized in a Covered
Jurisdiction, such withholding tax at such rate shall be treated as Non-Excluded
Taxes solely for the periods governed by such form. If, however, on the date a
Lender assigns all or a portion of its commitments under this Agreement to an
Affiliate thereof, such Lender assignor was entitled to additional amounts under
Section 2.14(a), then the related Lender assignee shall be entitled to
additional amounts solely to the extent that amounts payable to such Lender
assignee are themselves subject to a withholding tax imposed as a direct result
of a Change in Law occurring after the date on which the Lender assignor became
a party to this Agreement. Any additional Taxes imposed on any Lender as a
direct result of a change in the Applicable Lending Office of such Lender shall
be treated as Excluded Taxes except to the extent that (I) any such additional
Non-Excluded Taxes are imposed as a result of a Change in Law occurring after
the date of change of its Applicable Lending Office, or (II) such change is made
at the request of the Initial Borrower in which case the additional Non-Excluded
Taxes shall be treated as Non-Excluded Taxes imposed by reason of a Change in
Law and indemnified pursuant to subsection (a) above.
(d) For any period with respect to which any Lender or the Agent has failed
to provide the Initial Borrower with the duly completed forms, certificates or
other documents described in Section 2.14(c) or any successor thereto (other
than if such failure is due to such Lender or the Agent, as the case may be, not
being legally entitled to provide any such form, certificate or other document
or if it is legally inadvisable for such Lender or the Agent, as the case may
be, to deliver such form, certificate or other document), such Lender or the
Agent shall not be entitled to the payment of any additional amounts pursuant to
Section 2.14(a) or to indemnification under Section 2.14(b) with respect to
Non-Excluded Taxes by reason of such failure, and such Taxes shall be considered
Excluded Taxes; provided, however, that should any Lender or the Agent become
subject to Non-Excluded Taxes because of its failure to deliver a form required
hereunder, the appropriate Borrower shall, at the Agent's or such Lender's sole
expense, take such steps (consistent with legal and regulatory restrictions) as
such Lender or the Agent shall reasonably request to assist such Person in
recovering such Non-Excluded Taxes from the proper governmental or regulatory
authority. However, none of the Borrowers will be required to take any action
that would be inadvisable or overly burdensome.
(e) Each Lender and the Agent hereby agrees that, upon the occurrence of
any circumstances entitling such Person to any additional amounts under Section
2.14(a) or to indemnification under Section 2.14(b), such Lender or the Agent
shall use its best efforts (consistent with its internal policy and legal and
regulatory restrictions), at its own expense, to designate a different
Applicable Lending Office if
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the making of such a change would avoid the need for, or reduce the amount of,
any such additional amounts or indemnification that may thereafter accrue.
(f) If any Lender or the Agent entitled to additional compensation under
any of the foregoing provisions of this Section 2.14 shall fail to designate a
different Applicable Lending Office that avoids the need for additional
compensation as provided in Section 2.14, then the Initial Borrower may cause
such Lender or the Agent to (and, if the Initial Borrower so demands, such
Lender or the Agent shall) assign all of its rights and obligations under this
Agreement to one or more other Persons identified by any Borrower in accordance
with the terms of Section 8.07(a).
(g) If any Lender or the Agent determines that it has received a refund of
or credit against any Taxes as to which it has been indemnified by any Borrower
or with respect to which any Borrower has paid additional amounts pursuant to
this Section 2.14, it shall pay over such refund or credit to Borrower (but only
to the extent of amounts paid by such Borrower under this Section 2.14), net of
all out-of-pocket expenses of such Lender or the Agent and without interest
(other than any interest paid by the relevant governmental or regulatory
authority with respect to such refund or credit); provided, however, that such
Borrower, upon the request of such Lender or the Agent, agrees to repay the
amount paid over to such Borrower to such Lender or the Agent in the event such
Lender or the Agent is required to repay such refund to such governmental
authority or such credit is subsequently denied. Nothing in this Section 2.14(g)
shall be deemed to require the Agent or any Lender to provide copies of tax
returns or other confidential tax information.
(i) Each Lender and the Agent shall take all actions reasonably requested
by any Borrower to assist such Borrower, at the sole expense of such Borrower,
to recover from the relevant taxation authority or other governmental authority
any Taxes in respect of which amounts were paid by such Borrower pursuant to
Section 2.14(a) or Section 2.14(b).
SECTION 2.15 Sharing of Payments, Etc. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the Revolving Credit Advances owing to it
(other than pursuant to Section 2.11, 2.14 or 8.04(c)) in excess of its ratable
share of payments on account of the Revolving Credit Advances obtained by all
the Lenders, such Lender shall forthwith purchase from the other Lenders such
participations in the Revolving Credit Advances owing to them as shall be
necessary to cause such purchasing Lender to share the excess payment ratably
with each of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Lender, such purchase from
each Lender shall be rescinded and such Lender shall repay to the purchasing
Lender the purchase price to the extent of such recovery together with an amount
equal to such Lender's ratable share (according to the proportion of (i) the
amount of such Lender's required repayment to (ii) the total amount so recovered
from the purchasing Lender) of any interest or other amount paid or payable by
the purchasing Lender in respect of the total amount so recovered. Each of the
Borrowers agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section 2.15 may, to the fullest extent permitted by
law, exercise all its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Lender were the direct
creditor of such Borrower in the amount of such participation.
SECTION 2.16 Use of Proceeds. The proceeds of the Advances shall be
available (and each Borrower agrees that it shall use such proceeds) for general
corporate purposes of each Borrower and its Subsidiaries, including to finance
acquisitions, providing backup liquidity to support the issuance of commercial
paper and the consummation of the Transaction.
SECTION 2.17 Evidence of Debt. (a) Each Lender shall maintain in accordance
with its usual practice an account or accounts evidencing the indebtedness of
each Borrower to such Lender
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resulting from each Advance owing to such Lender from time to time, including
the amounts of principal and interest payable and paid to such Lender from time
to time on account thereof. Each Borrower agrees that upon notice by any Lender
to such Borrower (with a copy of such notice to the Agent) to the effect that a
promissory note or other evidence of indebtedness is required or appropriate in
order for such Lender to evidence (whether for purposes of pledge, enforcement
or otherwise) the Revolving Credit Advances owing to, or to be made by, such
Lender, such Borrower shall promptly execute and deliver to such Lender a
promissory note of such Borrower payable to the order of such Lender, in
substantially the form of Exhibit I-1 hereto (a "Revolving Credit Note"), in a
principal amount equal to the Commitment of such Lender.
(b) The Register maintained by the Agent pursuant to Section 8.07(d) shall
include a control account, and a subsidiary account for each Lender, in which
accounts (taken together) shall be recorded (i) the date and amount of each
Borrowing made hereunder, the Type of Advances comprising such Borrowing and, if
appropriate, the Interest Period applicable thereto, (ii) the terms of each
Assignment and Acceptance delivered to and accepted by it, (iii) the amount of
any principal or interest due and payable or to become due and payable from each
Borrower to each Lender hereunder, (iv) the amount of any sum received by the
Agent from such Borrower hereunder and each Lender's share thereof, and (v)
whether the proceeds of each Borrowing has be used for the purpose of purchasing
or carrying margin stock (within the meaning of Regulation U issued by the Board
of Governors of the Federal Reserve System).
(c) Entries made in good faith by the Agent in the Register pursuant to
subsection (b) above, and by each Lender in its account or accounts pursuant to
subsection (a) above, shall be prima facie evidence of the amount of principal
and interest due and payable or to become due and payable from each Borrower to,
in the case of the Register, each Lender and, in the case of such account or
accounts, such Lender, under this Agreement, absent manifest error; provided,
however, that the failure of the Agent or such Lender to make an entry, or any
finding that an entry is incorrect, in the Register or such account or accounts
shall not limit or otherwise affect the obligations of any Borrower under this
Agreement.
SECTION 2.18 Call Right of Affiliates. Any Affiliate of a Borrower may,
upon at least three Business Days' notice to the Agent stating the proposed date
and aggregate principal amount of the purchase, and, if such notice is given
such Affiliate shall, purchase from the Lenders the outstanding principal amount
of Advances comprising part of the same Borrowings in whole or ratably in part,
together with accrued interest thereon. After giving effect to each such
purchase, the purchasing Affiliate shall be treated as a Lender to the extent of
the rights and obligations so purchased, except as otherwise expressly set forth
herein. Each purchase made pursuant to this Section 2.18 shall also be subject
to Section 8.07(a).
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01 Conditions Precedent to Initial Borrowing. The initial
Borrowing of Advances under this Agreement shall be made on and as of the first
date (the "Closing Date") on which the following conditions precedent have been
satisfied:
(a) All amounts owing by the Initial Borrower under the Existing Credit
Agreement shall have been, or concurrently with the initial Borrowing hereunder
shall be, paid in full, and all commitments of the lenders thereunder shall have
been, or concurrently with the initial Borrowing hereunder shall be, terminated
in accordance with the terms of the Existing Credit Agreement.
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(b) The Initial Borrower shall have paid all accrued fees and expenses of
the Agent (including reasonable fees and expenses of counsel to the Agent).
(c) On the Closing Date, the following statements shall be true and the
Agent shall have received for the account of each Lender a certificate signed by
a duly authorized representative of the Initial Borrower, dated the Closing
Date, stating that:
(i) The representations and warranties contained in Section 4.01 are
correct in all material respects on and as of the Closing Date, and
(ii) No event has occurred and is continuing that constitutes a
Default.
(d) The Agent shall have received on or before the Closing Date the
following, each dated such date, in form and substance satisfactory to the Agent
and in sufficient copies for each Lender:
(i) Certified copies of each of the charter or other organizational
documents of the Initial Borrower and of resolutions of the Initial
Borrower approving this Agreement and of all documents evidencing other
necessary corporate action and governmental approvals, if any, with respect
to this Agreement, together with an English translation of each of the
foregoing documents that are not otherwise being provided in English.
(ii) A certificate of an authorized representative of the Initial
Borrower certifying the names and true signatures of the other authorized
representatives of the Initial Borrower authorized to sign this Agreement
and the other documents to be delivered hereunder.
(iii) The Pledge Agreement and the Registration Rights Agreement, in
each case duly executed and delivered by the Initial Borrower, together
with (A) proper financing statements under the Uniform Commercial Code and
similar requirements of law that are necessary to perfect and protect the
Mortgage created or purported to be created under the Pledge Agreement,
covering all Collateral described therein, and (B) proper termination
statements under the Uniform Commercial Code and similar requirements of
law that are necessary to terminate or amend existing liens on all
Collateral granted in favor of the Existing Agent under the terms of the
Existing Pledge Agreement, in each case, in appropriate form for filing or
recording.
(iv) Favorable written opinions of counsel for the Initial Borrower,
in the form of (A) Exhibit C-1 hereto from Luxembourg counsel to the
Initial Borrower, (B) Exhibit C-2 hereto from the Initial Borrower's
special counsel, and (C) Exhibit C-3 hereto from Cadwalader, Xxxxxxxxxx &
Xxxx LLP, special counsel to the Initial Borrower.
(v) A favorable opinion of Shearman & Sterling LLP, counsel for the
Agent, in form and substance satisfactory to the Agent.
SECTION 3.02 Conditions Precedent to Each Borrowing. The obligation of each
Lender to make any Advance on the occasion of each Borrowing (other than any
deemed Revolving Credit Borrowing pursuant to Section 2.04(b) or Section
2.07(c)) shall be subject to the conditions precedent that:
(a) on the date of such Borrowing the following statements shall be true
(and each of the giving of the applicable Notice of Revolving Credit Borrowing
or Notice of Competitive Bid Borrowing, as applicable, and the acceptance by any
Borrower of the proceeds of such Borrowing shall constitute a
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representation and warranty by the applicable Borrower that on the date of such
Borrowing such statements are true):
(i) the representations and warranties contained in Section 4.01
(except the representations set forth in the last sentence of subsection
(e) thereof and in subsection (f) thereof) are correct in all material
respects on and as of the date of such Borrowing, before and after giving
effect to such Borrowing and to the application of the proceeds therefrom,
as though made on and as of such date; and
(ii) no event has occurred and is continuing, or would result from
such Borrowing or from the application of the proceeds therefrom, that
constitutes a Default;
(b) the Agent shall have received a properly completed Part I of Federal
Reserve Form U-1, duly executed by an authorized representative of the Initial
Borrower; and
(c) the Agent shall have received such other approvals, opinions or
documents as the Required Lenders through the Agent may reasonable request.
SECTION 3.03 Determinations Under Section 3.01. For purposes of determining
compliance with the conditions specified in Section 3.01, each Lender shall be
deemed to have consented to, approved or accepted or to be satisfied with each
document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to the Lenders unless an officer of the Agent
responsible for the transactions contemplated by this Agreement shall have
received notice from such Lender prior to the date that the Initial Borrower, by
notice to the Lenders, designates as the proposed Closing Date, specifying its
objection thereto.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Representations and Warranties of the Borrowers. Each of the
Borrowers represents and warrants as to itself as follows:
(a) Such Borrower and its Guarantor, if any, is a corporation, general
partnership or limited liability company duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation or
formation and is duly qualified and in good standing in each jurisdiction
wherein the failure to so qualify would have a material adverse effect on the
financial condition or results of operations of such Borrower and its
Subsidiaries, taken as a whole. Each of the Subsidiaries of such Borrower and
its Guarantor, if any, is duly organized and validly existing under the laws of
its jurisdiction of incorporation or formation.
(b) The execution, delivery and performance by such Borrower and its
Guarantor, if any, of each Loan Document to which it is a party delivered
hereunder, and the consummation of the transactions contemplated hereby, are
within their respective corporate or other similar organization powers, have
been duly authorized by all necessary corporate or other similar organization
action, and do not contravene (i) their respective charter, by-laws or other
organizational documents or (ii) law or any material contractual restriction
binding on or affecting such Borrower or such Guarantor, as the case may be.
(c) No authorization or approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body or any other third
party is required for the due execution,
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delivery and performance by such Borrower and its Guarantor, if any, of this
Agreement or any other Loan Document to which it is a party, except for any such
authorizations, approvals, actions, notices or filings as have already been made
or obtained and are in full force and effect.
(d) This Agreement has been, and each other Loan Document when delivered
hereunder will have been, duly executed and delivered by such Borrower and its
Guarantor, if any, party thereto. This Agreement is, and each other Loan
Document to which it is a party when delivered hereunder will be, the legal,
valid and binding obligation of such Borrower and its Guarantor, if any,
enforceable against it in accordance with their respective terms.
(e) (i) The unaudited financial statements of such Borrower and its
Subsidiaries delivered to the Agent prior to the Closing Date, in the case of
the Initial Borrower, or upon the effectiveness of the Borrower Accession
Agreement, in the case of each Additional Borrower (other than an Affiliate
Guaranteed Borrower), (A) were prepared in good faith from its internal
accounting systems and (B) are in substantially the form used by its managers
and those of its Subsidiaries for internal review and business operations in the
ordinary course.
(ii) The financial statements of each Guarantor, if any, delivered to
the Agent pursuant to Section 8.10(a)(iii) fairly present, subject, in the
case of any such financial statements that are not audited, to year-end
audit adjustments and footnote disclosure, the financial condition of such
Guarantor and its Included Subsidiaries as at the date of such financial
statements and the results of the operations of such Guarantor and its
Included Subsidiaries for the period ended on such date.
(iii) Except for the Transaction or as disclosed in writing to the
Agent prior to the Closing Date, since December 31, 2004, there has been no
Material Adverse Change.
(f) There is no pending or overtly threatened action, suit, investigation,
litigation or proceeding affecting such Borrower, any of its Subsidiaries or its
Guarantor, if any, before any court, governmental agency or arbitrator that
could reasonably be expected to adversely affect the legality, validity or
enforceability of any Loan Document, or the consummation of the transactions
contemplated hereby.
(g) Such Borrower is not engaged in the business of extending credit for
the purpose of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the Board of Governors of the Federal Reserve System),
and no proceeds of any Advance made to such Borrower will be used to extend
credit to any Person other than another Borrower for the purpose of purchasing
or carrying any margin stock.
(h) The proceeds of the Advances will be used solely in accordance with
Section 2.16, the making of each Advance pursuant to this Agreement will comply
in all respects with the provisions of Regulation U issued by the Board of
Governors of the Federal Reserve System, and any purchases of common stock of
the Company by it shall be effected in compliance with all applicable laws.
(i) All written information (other than financial information, projections,
estimates and other forward looking statements) heretofore furnished by such
Borrower and its Guarantor, if any, to the Lenders for purposes of or in
connection with this Agreement or any transaction contemplated hereby, taken as
a whole, in each case as such written information may be amended, modified or
supplemented by it from time to time, is correct in all material respects and
does not omit to state any material fact or any fact necessary to make the
statements contained therein not materially misleading in light of the
circumstances under which such statements were made.
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(j) Such Borrower is not an "investment company", or a company "controlled"
by an "investment company", within the meaning of the Investment Company Act of
1940, as amended.
(k) All of the Advances and other obligations owing by such Borrower to the
Agent and the other Lenders and under the Credit Agreement and the Notes, if
any, rank pari passu or senior to all of its other senior unsecured indebtedness
for money borrowed.
ARTICLE V
COVENANTS OF THE BORROWERS
SECTION 5.01 Affirmative Covenants. So long as any Advance shall remain
unpaid or any Lender shall have any Commitment hereunder, the Initial Borrower
will, in the case of clause (e) of this Section 5.01, and each of the Borrowers
will, in all other cases under this Section:
(a) Compliance with Laws, Etc. Comply, and cause each of its Subsidiaries
and its Guarantors, if any, to comply, in all material respects, with all
applicable laws, rules, regulations and orders, except where the failure to so
comply would not have a Material Adverse Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries and its Guarantor, if any, to pay and discharge, before the same
shall become delinquent, (i) all material taxes, assessments and governmental
charges or levies imposed upon it or upon its property and (ii) all material
lawful claims that, if unpaid, might by law become a Mortgage upon its property;
provided, however, that none of the Borrowers, the Subsidiaries of a Borrower or
the Guarantors shall be required to pay or discharge any such tax, assessment,
charge, levy or claim that is being contested in good faith and by proper
proceedings and as to which appropriate reserves are being maintained, unless
and until any Mortgage resulting therefrom attaches to its property and
enforcement, collection, execution, levy or foreclosure proceedings shall have
been commenced with respect thereto.
(c) Preservation of Corporate Existence, Etc. Preserve and maintain, and
cause each of its Subsidiaries and its Guarantor, if any, to preserve and
maintain, its existence as a corporation, general partnership or limited
liability company, as applicable, its rights (charter and statutory) and
franchises; provided, however, that (i) each of the Borrowers, each of their
respective Subsidiaries and each of the Guarantors may consummate any merger,
consolidation or transfer, sale or lease of its assets as an entirety to any
Person not prohibited under Section 5.02(b), (ii) each of the Borrowers, each of
their respective Subsidiaries and each of the Guarantors may wind up, liquidate
or dissolve any inactive or immaterial Subsidiary of such Person, (iii) none of
the Borrowers, the Subsidiaries of a Borrower or the Guarantors shall be
required to preserve any right or franchise if the Board of Directors of such
Borrower, such Subsidiary or such Guarantor shall determine that the
preservation thereof is no longer desirable in the conduct of its business, and
that the loss thereof is not disadvantageous in any material respect to the Loan
Parties and their Subsidiaries, taken as a whole, or the Lenders, and (iv) each
of the Borrowers, each of their respective Subsidiaries and each of the
Guarantors may reincorporate or otherwise change its legal form so long as (A)
the applicable Borrower provides written notice thereof to the Agent reasonably
promptly following such reincorporation or change (together with certified
copies of each amended charter or other organizational document, and, solely in
the case of the Borrowers if the Collateral has not been released prior to such
date in accordance with Section 10 of the Pledge Agreement, any amendments or
supplements to the Pledge Agreement necessary for the Agent, on behalf of the
Lenders, to maintain the perfected nature of its Mortgage covering the
Collateral), and (B) such reincorporation or change would not result in a
Material Adverse Effect.
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(d) Reporting Requirements. Deliver to the Agent (for distribution by the
Agent to the Lenders):
(i) as soon as available and in any event within 60 days after the end
of each of the first three quarters of each fiscal year of each of the Loan
Parties (other than any Affiliate Guaranteed Borrower), a Consolidated
balance sheet of such Loan Party and its Included Subsidiaries as of the
end of such quarter and Consolidated statements of income and cash flows of
such Loan Parties and its Included Subsidiaries for the period commencing
at the end of the previous fiscal year and ending with the end of such
quarter, duly certified (subject to year-end audit adjustments) by an
authorized representative of such Loan Party as having been prepared in
accordance with generally accepted accounting principles and, to the best
of such Loan Party's knowledge, as fairly presenting in all material
respects the financial condition, results of operations and cash flows of
such Loan Party and its Included Subsidiaries for the period covered
thereby;
(ii) as soon as available, and in any event within 120 days after the
end of each fiscal year of each of the Loan Parties (other than any
Affiliate Guaranteed Borrower), a copy of the annual audit report for such
year for such Loan Party and its Included Subsidiaries, containing the
Consolidated balance sheet of such Loan Parties and its Included
Subsidiaries as of the end of such fiscal year and Consolidated statements
of income and cash flows of such Loan Party and its Included Subsidiaries
for such fiscal year, in each case accompanied by an unqualified opinion or
an opinion reasonably acceptable to the Required Lenders by Deloitte &
Touche LLP or other independent public accountants of recognized standing;
(iii) as soon as possible and in any event within five days after the
occurrence of each Default or Event of Default continuing on the date of
such statement, a statement of any Loan Party setting forth details of such
Default or Event of Default and the action that one or more of the Loan
Parties and their Subsidiaries has taken and propose to take with respect
thereto;
(iv) promptly after the sending or filing thereof, copies of all
reports that any Borrower sends to any of its securityholders, and copies
of all reports and registration statements that such Borrower or any of its
Subsidiaries files with the Securities and Exchange Commission or any
national securities exchange;
(v) promptly after the commencement thereof, notice of all actions and
proceedings before any court, governmental agency or arbitrator affecting
any of the Borrowers or any of their Subsidiaries of the type described in
Section 4.01(f); and
(vi) such other information respecting any of the Loan Parties or any
of their Subsidiaries as the Required Lenders through the Agent may from
time to time reasonably request;
provided, however, that in the case of clauses (i), (ii) and (iv) of this
subsection (d), each Borrower may comply with its obligations thereunder by
posting the relevant documents to its website, to any of the other Borrowers'
websites, to xxx.xxx.xxx, or to such other website as notified to the Agent and
the Lenders in lieu of delivering hard copies thereof to the Lenders.
(e) Obtaining of Public Debt Rating. Use commercially reasonable efforts to
obtain, as soon as reasonably practicable and in any event no later than July
31, 2006, a rating of the non-credit enhanced long-term senior unsecured debt of
the initial Borrower from Xxxxx'x or S&P.
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SECTION 5.02 Negative Covenants. So long as any Advance shall remain unpaid
or any Lender shall have any Commitment hereunder, none of the Borrowers shall:
(a) Restrictions on Mortgages. (i) Create, incur, assume or suffer to
exist, or permit any of its Subsidiaries or its Guarantor, if any, to, create,
incur, assume or suffer to exist, any Mortgage on or with respect to any of its
property and assets, other than:
(i) Mortgages created under the Loan Documents;
(ii) Permitted Mortgages;
(iii) Mortgages existing as of the date hereof;
(iv) Mortgages granted in favor of the Borrowers or any of their
Subsidiaries on all or any portion of the assets of the Loan Parties and
their Subsidiaries other than up to 75% of their Principal Manufacturing
Properties, considered as a whole;
(v) deposits made, and letters of credit issued, to secure the
performance of operating leases of the Loan Parties and their Subsidiaries
arising in the ordinary course of business;
(vi) Mortgages in favor of governmental bodies to secure progress or
advance payments;
(vii) Mortgages arising solely from precautionary filings of financing
statements under the Uniform Commercial Code of any jurisdiction (or
similar filings and recordings under equivalent provisions of applicable
law);
(viii) any Mortgages existing on any property at the time such
property is acquired by any Loan Party or any of its Subsidiaries, or on
any property of any Person at the time such Person becomes, or is merged
into, the Company or any of its Subsidiaries;
(ix) purchase money and title retention Mortgages, capitalized leases
and construction- or improvement-cost Mortgages;
(x) Mortgages arising under or in connection with Hedge Agreements
entered into by any Loan Party or any of its Subsidiaries;
(xi) Mortgages on accounts (as defined in the applicable Uniform
Commercial Code at any time in effect), receivables, notes, contracts or
contract rights, general intangibles, lockboxes, (in each case related to
the applicable accounts or receivables) and collections and proceeds
therefrom created in connection with the securitization or monetization of
accounts receivable or other commercial paper programs of the Company and
its Subsidiaries;
(xii) Mortgages arising in connection with repurchase agreements,
reverse purchase agreements and other similar agreements for the purchase,
sale or loan of securities, in each case in the ordinary course of
business;
(xiii) Mortgages of all of the Loan Parties, their Subsidiaries and
Guarantors, if any, not otherwise permitted hereunder encumbering assets
not exceeding 20% of Consolidated Assets of the Loan Parties and their
Included Subsidiaries at any time; and
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(xiv) any extension, refinancing, renewal or refunding of any Mortgage
referred to in clauses (i) through (xiii) of this Section 5.02(a).
Notwithstanding the foregoing, on and after the date that the Pledge Agreement
has been terminated, the Borrowers and their respective Subsidiaries and
Guarantors, if any, shall not withdraw (within the meaning of Section 211.3(f)
of Regulation U issued by the Board of Governors of the Federal Reserve System)
assets from coverage by this Section 5.02(a) that, solely as a consequence of
such withdrawal (and not due to any fluctuations in the value of the assets
themselves) would cause the value of the assets subject to this Section 5.02(a)
to be less than the aggregate principal amount of the Advances that were used
for the purpose of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the Board of Governors of the Federal Reserve System).
(b) Consolidation, Merger and Sale of Assets. Consolidate or merge with or
into, or transfer, sell or lease its assets as an entirety to, or permit any
Guarantor, if any, to consolidate or merge with or into, or transfer, sell or
lease its assets as an entirety to, any Person, unless the Person (if other than
a Borrower or a Subsidiary of the Company) formed by such consolidation or into
which such Borrower, or such Guarantor is merged or which acquires or leases the
assets of such Borrower or such Guarantor substantially as an entirety assumes
such Borrower's or such Guarantor's obligations under the Loan Documents (and,
upon such assumption, such Person shall be a Borrower or Guarantor, as
applicable, for all purposes of the Loan Documents), or another Borrower assumes
such Borrower's obligations, or another Guarantor assumes such Guarantor's
obligations, under the Loan Documents; provided, that after giving effect to
such transaction, no Default or Event of Default shall have occurred and be
continuing, and such consolidation, merger, transfer, sale or lease of assets is
not prohibited under the indentures pursuant to which any publicly held debt of
such Borrower or such Guarantor was issued.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01 Events of Default. Each of the following events shall
constitute an "Event of Default" under this Agreement:
(a) Any Borrower shall fail to pay any principal of any Advance when the
same becomes due and payable; or any Borrower shall fail to pay any interest on
any Advance or make any other payment of fees payable under this Agreement or
any Note within ten days after the same becomes due and payable; or any Loan
Party shall fail to make any payment of any other amount payable under any Loan
Document within ten days after the same becomes due and payable; or
(b) Any representation or warranty made by any Loan Party (or any of its
authorized representatives) under or in connection with this Agreement or any of
the other Loan Documents shall prove to have been incorrect in any material
respect when made; or
(c) (i) Any Borrower shall fail to perform or observe any term, covenant or
agreement contained in, or any Guarantor shall fail to perform or observe any
term, covenant or agreement that any Borrower has agreed to cause such Guarantor
to perform under, (A) Section 5.01(d) or (e) (other than clauses (e)(i), (e)(ii)
or (e)(iii)) or (B) Section 5.02, or (ii) any Loan Party shall fail to perform
or observe any other term, covenant or agreement contained in, or any Guarantor
shall fail to perform or observe any term, covenant or agreement that any
Borrower has agreed to cause such Guarantor to perform under, this Agreement or
any of the Loan Documents on its part to be performed or observed if, in the
case of this clause (ii), such failure shall remain unremedied for 30 days after
written notice thereof shall have been given to the Initial Borrower by the
Agent or any Lender; or
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(d) Any Borrower or any of its Subsidiaries or any Guarantor shall admit in
writing its inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be instituted
by or against any Borrower or any of its Subsidiaries or any Guarantor seeking
to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or composition of
it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order for relief
or the appointment of a receiver, trustee, custodian or other similar official
for it or for any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it), either such
proceeding shall remain undismissed or unstayed for a period of 90 days, or any
of the actions sought in such proceeding (including, without limitation, the
entry of an order for relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, it or for any substantial part of its
property) shall occur; or any Borrower or any of its Subsidiaries or any
Guarantor shall take any corporate or other action to authorize any of the
actions set forth above in this subsection (d); or
(e) Any judgment or order for the payment of money in excess of
$250,000,000 shall be rendered against any Borrower, any Guarantor or any of the
Material Subsidiaries and not satisfied and there shall be any period of 60
consecutive days during which a stay of enforcement of such unsatisfied judgment
or order, by reason of a pending appeal or otherwise, shall not be in effect;
provided, however, that any such judgment or order shall not be an Event of
Default under this Section 6.01(e) if and for so long as (i) the amount of such
judgment or order is covered by a valid and binding policy of insurance between
the defendant and the insurer covering payment thereof and (ii) such insurer,
which shall be rated at least "A" by A.M. Best Company, has been notified of,
and has not disputed the claim made for payment of, the amount of such judgment
or order; or
(f) Any non-monetary judgment or order shall be rendered against any
Borrower or any of its Subsidiaries or any Guarantor that would have a Material
Adverse Effect and not resolved, and there shall be any period of 60 consecutive
days during which a stay of enforcement of such judgment or order, by reason of
a pending appeal or otherwise, shall not be in effect.
SECTION 6.02 Remedies.
(a) If any Event of Default shall occur and be continuing, then, and in any
such event, the Agent (i) shall at the request, or may with the consent, of the
Required Lenders, by notice to each of the Borrowers, declare the obligation of
each Lender to make Advances to be terminated, whereupon the obligation of each
Lender to make such Advances shall forthwith terminate, and (ii) shall at the
request, or may with the consent, of the Required Lenders, by notice to each of
the Borrowers, declare the Advances, all interest thereon and all other amounts
payable under this Agreement to be forthwith due and payable, whereupon the
Advances, all such interest and all such amounts shall become and be forthwith
due and payable, without presentment, demand, protest or further notice of any
kind, all of which are hereby expressly waived by each of the Borrowers.
(b) Notwithstanding anything to the contrary in clause (a) of this Section
6.02, in the event of an actual or deemed entry of an order for relief with
respect to any Borrower under the Federal Bankruptcy Code, (i) the obligation of
each Lender to make Advances to such Borrower shall automatically be terminated
and (ii) the Advances made to such Borrower, all interest thereon and all
amounts payable under this Agreement with respect thereto shall automatically
become and be due and payable, without presentment, demand, protest or any
notice of any kind, all of which are hereby expressly waived by each of the
Borrowers.
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ARTICLE VII
THE AGENT
SECTION 7.01 Authorization and Action. Each Lender hereby appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement and the other Loan Documents as
are delegated to the Agent by the terms hereof and thereof, together with such
powers and discretion as are reasonably incidental thereto. As to any matters
not expressly provided for by this Agreement or the other Loan Documents
(including, without limitation, enforcement or collection of the Advances), the
Agent shall not be required to exercise any discretion or take any action, but
shall be required to act or to refrain from acting (and shall be fully protected
in so acting or refraining from acting) upon the instructions of the Required
Lenders, and such instructions shall be binding upon all Lenders and all holders
of Notes; provided, however, that the Agent shall not be required to take any
action that exposes the Agent to personal liability or that is contrary to this
Agreement or the other Loan Documents applicable law. The Agent agrees to give
to each Lender prompt notice of each notice given to it by each of the Borrowers
pursuant to the terms of this Agreement or the other Loan Documents.
SECTION 7.02 Agent's Reliance, Etc. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or them under or in connection with this Agreement or
any of the other Loan Documents, except for its or their own negligence or
willful misconduct. Without limitation of the generality of the foregoing, the
Agent: (i) may treat the Lender that made any Advance as the holder of the Debt
resulting therefrom until the Agent receives and accepts an Assignment and
Acceptance entered into by such Lender, as assignor, and any assignee thereof as
provided in Section 8.07; (ii) may consult with legal counsel (including counsel
for any of the Loan Parties), independent public accountants and other experts
selected by it and shall not be liable for any action taken or omitted to be
taken in good faith (without negligence or willful misconduct) by it in
accordance with the advice of such counsel, accountants or experts; (iii) makes
no warranty or representation to any Lender and shall not be responsible to any
Lender for any statements, warranties or representations (whether written or
oral) made in or in connection with this Agreement or any of the other Loan
Documents; (iv) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of this
Agreement or any of the other Loan Documents on the part of any of the Loan
Parties or to inspect the property (including the books and records) of any of
the Loan Parties; (v) shall not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness, sufficiency or value
of, or the perfection or priority of any lien or security interest created or
purported to be created under or in connection with, this Agreement or any of
the other Loan Documents or any other instrument or document furnished pursuant
hereto or thereto; and (vi) shall incur no liability under or in respect of this
Agreement or any of the other Loan Documents by acting in good faith upon any
notice, consent, certificate or other instrument or writing (which may be by
telecopier or telegram) believed by it to be genuine and signed or sent by the
proper party or parties.
SECTION 7.03 Citibank and Affiliates. With respect to its Commitment, the
Advances made by it and any Note or Notes issued to it, Citibank shall have the
same rights and powers under this Agreement as any other Lender and may exercise
the same as though it were not the Agent; and the term "Lender" or "Lenders"
shall, unless otherwise expressly indicated, include Citibank in its individual
capacity. Citibank and its Affiliates may accept deposits from, lend money to,
act as trustee under indentures of, accept investment banking engagements from
and generally engage in any kind of business with, any of the Borrowers, any of
their Subsidiaries and any Person who may do business with or own securities of
any of the Borrowers or their Subsidiaries, all as if Citibank were not the
Agent and without any duty to account therefor to the Lenders.
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SECTION 7.04 Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent or any other Lender and based
on the financial statements referred to in Section 4.01 and such other documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agent or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement.
SECTION 7.05 Indemnification. The Lenders agree to indemnify the Agent (to
the extent not reimbursed by the Borrowers), ratably according to the respective
principal amounts of the Advances then owing to each of them (or if no Advances
are at the time outstanding or if any Advances are then owing to Persons that
are not Lenders, ratably according to the respective amounts of their
Commitments), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever that may be imposed on, incurred by, or
asserted against the Agent in any way relating to or arising out of this
Agreement or any of the other Loan Documents or any action taken or omitted by
the Agent hereunder or thereunder (collectively, the "Indemnified Costs"),
provided that no Lender shall be liable for any portion of the Indemnified Costs
resulting from the Agent's negligence or willful misconduct. Without limitation
of the foregoing, each Lender agrees to reimburse the Agent promptly upon demand
for its ratable share of any out-of-pocket expenses (including counsel fees)
incurred by the Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, to the extent that the Agent
is not reimbursed for such expenses by the Borrowers. In the case of any
investigation, litigation or proceeding giving rise to any Indemnified Costs,
this Section 7.05 applies whether any such investigation, litigation or
proceeding is brought by the Agent, any Lender or a third party.
SECTION 7.06 Successor Agent. The Agent may resign at any time by giving
written notice thereof to the Lenders and each of the Borrowers and may be
removed at any time with or without cause by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Agent acceptable to the Initial Borrower. If no successor Agent shall
have been so appointed by the Required Lenders and approved by the Initial
Borrower, and shall have accepted such appointment, within 30 days after the
retiring Agent's giving of notice of resignation or the Required Lenders'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent, which shall be a commercial bank organized
under the laws of the United States of America or of any State thereof and
having a combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, discretion, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations under this
Agreement and the other Loan Documents. After any retiring Agent's resignation
or removal hereunder as Agent, the provisions of this Article VII shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Agent under this Agreement and the other Loan Documents.
SECTION 7.07 Sub-Agent. The Sub-Agent has been designated under this
Agreement to carry out the duties of the Agent. The Sub-Agent shall be subject
to each of the obligations in this Agreement to be performed by the Sub-Agent,
and each of the Borrowers and the Lenders agrees that the Sub-Agent shall be
entitled to exercise each of the rights and shall be entitled to each of the
benefits of the Agent under this Agreement as such rights and benefits relate to
the performance of its obligations hereunder.
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SECTION 7.08 Other Agents. Each Lender hereby acknowledges that no
syndication agent and no documentation agent nor any other Lender designated as
any "agent" (other than the Agent) on the signature pages or the cover hereof
has any liability hereunder other than in its capacity as a Lender.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01 Amendments, Etc. No amendment or waiver of any provision of
this Agreement or any of the other Loan Documents, nor consent to any departure
by any Borrower therefrom, shall in any event be effective unless the same shall
be in writing and signed by each of the Borrowers and the Required Lenders, and
then such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given; provided, however, that no amendment,
waiver or consent shall, unless in writing and signed by all the Borrowers and
all of the Lenders (other than any Lender that is an Affiliate of any Borrower),
do any of the following: (a) waive any of the conditions specified in Section
3.01, (b) increase the Commitments of the Lenders or postpone the Termination
Date, (c) reduce the principal of, or interest on, the Revolving Credit Advances
or any fees or other amounts payable hereunder, (d) postpone any scheduled date
for any payment of principal of, or interest on, the Revolving Credit Advances
or any fees or other amounts payable hereunder pursuant to Section 2.04, 2.06 or
2.07, (e) change the percentage of the Commitments or of the aggregate unpaid
principal amount of the Revolving Credit Advances, or the number of Lenders,
that shall be required for the Lenders or any of them to take any action
hereunder, or (f) amend this Section 8.01; and provided further that no
amendment, waiver or consent shall, unless in writing and signed by the Agent in
addition to the Lenders required above to take such action, affect the rights or
duties of the Agent under this Agreement or any other Loan Document.
SECTION 8.02 Notices, Etc. (a) All notices and other communications
provided for hereunder shall be either (x) in writing (including telecopier or
telegraphic communication) and mailed, telecopied, telegraphed or delivered, or
(y) to the extent set forth in Section 8.02(b) and in the proviso to this
Section 9.02(a), by electronic mail (in .PDF form) ("Email"), confirmed
reasonably promptly thereafter in writing, if to the Initial Borrower, at the
address of such Person at 0, xxx Xxxxxx Xxxxxxx, X-0000 Xxxxxxxxxx, with a copy
to Xxxxxx X. Xxxxxx, General Counsel-Western Europe, Procter & Xxxxxx, 00, Xxxxx
xx Xxxxx Xxxxxxx, 0000 Xxxxx-Xxxxx 0, Xxxxxxxxxxx, Tel. x00-00-000-0000, Fax
x00-00-000-0000, Email: [_________]; if to any Additional Borrower to such
Person at the address specified therefor in the applicable Borrower Accession
Agreement; if to any Initial Lender, at its Domestic Lending Office specified
opposite its name on Schedule I hereto; if to any other Lender, at its Domestic
Lending Office specified in the Assignment and Acceptance pursuant to which it
became a Lender, as the case may be; and if to the Agent, at its address at
[_____________]; or, as to any Borrower or the Agent, at such other address as
shall be designated by such party in a written notice to the other parties and,
as to each other party, at such other address as shall be designated by such
party in a written notice to each of the Borrowers and the Agent; provided, that
Notices of Revolving Credit Borrowing, Notices of Competitive Bid Borrowing and
materials delivered pursuant to Section 5.01(d)(i), (d)(ii) and (d)(iv) shall be
delivered to the Agent as specified in Section 9.02(b) or as otherwise specified
to the Company by the Agent. All such notices and communications shall, when
mailed, telecopied or Emailed, be effective when deposited in the mails,
telecopied or confirmed by Email, respectively, except that notices and
communications to the Agent pursuant to Article II or III shall not be effective
until received by the Agent. Delivery by telecopier or facsimile of an executed
counterpart of any amendment or waiver of any provision of this Agreement or any
other Loan Document or of any Exhibit hereto or thereto to be executed and
delivered hereunder shall be effective as delivery of a manually executed
counterpart thereof.
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(b) Notices of Revolving Credit Borrowing, Notices of Competitive Bid
Borrowing and materials required to be delivered pursuant to Section 5.01(d)(i),
(d)(ii) and (d)(iv) may be delivered to the Agent in an electronic medium in a
format acceptable to the Agent by Email at xxxxxxxxxxxxxxx@xxxxxxxxx.xxx, or
such other email address as the Agent shall specify in writing to each of the
Loan Parties. Each of the Borrowers agrees that the Agent may make such
materials, as well as any other written information, documents, instruments and
other material relating to each of the Borrowers, any of its Subsidiaries or any
other materials or matters relating to this Agreement, any of the other Loan
Documents or any of the transactions contemplated hereby or thereby
(collectively, the "Communications") available to the Lenders by posting such
notices on Intralinks or a substantially similar electronic system reasonably
approved by the Company (the "Platform"). Although the primary web portal is
secured with a dual firewall and a User ID/Password Authorization System and the
Platform is secured through a single user per deal authorization method whereby
each user may access the Platform only on a deal-by-deal basis, each of the
Borrowers acknowledges that (i) the distribution of material through an
electronic medium is not necessarily secure and that there may be
confidentiality and other risks associated with such distribution, (ii) the
Platform is provided "as is" and "as available" and (iii) neither the Agent nor
any of its Affiliates warrants the accuracy, adequacy or completeness of the
Communications or the Platform and each expressly disclaims liability for errors
or omissions in the Communications or the Platform. No warranty of any kind,
express, implied or statutory, including, without limitation, any warranty of
merchantability, fitness for a particular purpose, non-infringement of third
party rights or freedom from viruses or other code defects, is made by the Agent
or any of its Affiliates in connection with the Platform.
(c) Each Lender agrees that notice to it (as provided in the next sentence)
(a "Notice") specifying that any Communications have been posted to the Platform
shall constitute effective delivery of such information, documents or other
materials to such Lender for purposes of this Agreement. Each Lender agrees (i)
to notify the Agent in writing of such Lender's Email address to which a Notice
may be sent by electronic transmission (including by electronic communication)
on or before the date such Lender becomes a party to this Agreement (and from
time to time thereafter to ensure that the Agent has on record an effective
Email address for such Lender) and (ii) that any Notice may be sent to such
Email address.
SECTION 8.03 No Waiver; Remedies. No failure on the part of any Lender or
the Agent to exercise, and no delay in exercising, any right hereunder or under
any other Loan Document shall operate as a waiver thereof; nor shall any single
or partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies provided herein and in
the Pledge Agreement, when executed and delivered hereunder, are cumulative and
not exclusive of any remedies provided by law.
SECTION 8.04 Costs and Expenses. (a) The Initial Borrower agrees to pay
reasonably promptly following demand therefor all reasonable out-of-pocket costs
and expenses of the Agent in connection with the preparation, execution,
delivery, administration, modification and amendment of this Agreement, the
other Loan Documents and the other documents to be delivered hereunder,
including, without limitation, (A) all due diligence, syndication (including
printing, distribution and bank meetings), transportation, computer,
duplication, appraisal, consultant, and audit expenses and (B) the reasonable
fees and expenses of counsel for the Agent with respect thereto and with respect
to advising the Agent as to its rights and responsibilities under this Agreement
and the other Loan Documents. Each of the Borrowers further agrees to pay on
demand all reasonable out-of-pocket costs and expenses of the Agent and the
Lenders, if any (including, without limitation, reasonable counsel fees and
expenses), in connection with the enforcement against such Borrower (whether
through negotiations, legal proceedings or otherwise) of this Agreement, the
other Loan Documents and the other documents to be delivered hereunder and
thereunder, including, without limitation, reasonable fees and expenses of
counsel for the
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Agent and each Lender in connection with the enforcement of rights against such
Borrower under this Section 8.04(a).
(b) Each of the Borrowers agrees to indemnify and hold harmless the Agent
and each Lender and each of their Affiliates and their officers, directors,
employees, agents and advisors (each, an "Indemnified Party"; and each of the
Agent and the Lenders, and their respective Affiliates officers, directors,
employees, agents and advisors being, in relation to each other, a "Related
Indemnified Party") from and against any and all claims, damages, losses,
liabilities and expenses (including, without limitation, reasonable fees and
expenses of counsel) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of (including, without limitation, in connection with any investigation,
litigation or proceeding or preparation of a defense in connection therewith)
the Advances, this Agreement or any of the other Loan Documents, any of the
transactions contemplated herein or therein or the actual or proposed use of the
proceeds of the Advances; provided, however, that no Borrower shall have any
obligation to indemnify an Indemnified Party pursuant to this Section 8.04(b)
with respect to any claim, damage, loss, liability or expense (i) that resulted
from negligence, willful misconduct, violation of law or the breach of any Loan
Document by such Indemnified Party or a Related Indemnified Party, (ii) is
attributable to Taxes or Other Taxes, which in each case shall be governed
solely by Section 2.14, (iii) that arises out of a claim, litigation,
arbitration or proceeding of one or more of the Agent and/or any of the Lenders
solely against the Agent and/or any of the other Lenders not attributable to the
actions of such Borrower or any of its Subsidiaries or Affiliates or (iv) that
arises out of a claim, litigation, arbitration or proceeding in which one or
more of the Borrowers and/or their Subsidiaries or Affiliates prevail. In the
case of an investigation, litigation or other proceeding to which the indemnity
in this Section 8.04(b) applies, such indemnity shall be effective whether or
not such investigation, litigation or proceeding is brought by the directors,
shareholders or creditors of any Borrower or an Indemnified Party or any other
Person or any Indemnified Party is otherwise a party thereto and whether or not
the transactions contemplated hereby are consummated. Each of the Borrowers and
each of the Indemnified Parties hereby agrees not to assert any claim against
each such other Person, on any theory of liability, for special, indirect,
consequential or punitive damages arising out of or otherwise relating to the
Advances, this Agreement or any of the other Loan Documents, any of the
transactions contemplated herein or therein or the actual or proposed use of the
proceeds of the Advances. No Indemnified Party shall settle or otherwise pay or
agree to pay any claim, damages, losses liabilities or expenses for which any
Borrower is obligated to provide indemnification under this Section 8.04(b)
without the prior written consent of such Borrower.
(c) If any payment of principal of, or Conversion of, any Eurocurrency Rate
Advance is made by any Borrower to or for the account of a Lender other than on
the last day of the Interest Period for such Advance, as a result of a payment
or Conversion pursuant to Section 2.08(d) or (e), 2.10 or 2.12, acceleration of
the maturity of the Advances pursuant to Section 6.02 or for any other reason,
or by an assignee to a Lender other than on the last day of the Interest Period
for such Advance upon an assignment of rights and obligations under this
Agreement pursuant to Section 8.07 as a result of a demand by a Borrower
pursuant to Section 8.07(a), each of the Borrowers shall, upon demand by such
Lender (with a copy of such demand to the Agent), pay to the Agent for the
account of such Lender any amounts required to compensate such Lender for any
additional losses, costs or expenses that it may reasonably incur as a result of
such payment or Conversion, including, without limitation, any loss (excluding
loss of anticipated profits), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by any Lender to
fund or maintain such Advance.
(d) Without prejudice to the survival of any other agreement of the
Borrowers hereunder, the agreements and obligations of the Borrowers contained
in Sections 2.11, 2.14 and 8.04 shall survive the payment in full of principal,
interest and all other amounts payable hereunder and under the other Loan
Documents.
-41-
SECTION 8.05 Right of Set-off. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making of the request or the
granting of the consent specified by Section 6.02 to authorize the Agent to
declare the Advances due and payable pursuant to the provisions of Section 6.02,
each Lender and each of its Affiliates is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other indebtedness at any time owing by such Lender or such
Affiliate to or for the credit or the account of any Borrower against any and
all of the obligations of any Borrower now or hereafter existing under this
Agreement, whether or not such Lender shall have made any demand under this
Agreement and although such obligations may be unmatured. Each Lender agrees
promptly to notify each of the Borrowers after any such set-off and application,
provided that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of each Lender and its Affiliates under
this Section are in addition to other rights and remedies (including, without
limitation, other rights of set-off) that such Lender and its Affiliates may
have.
SECTION 8.06 Binding Effect. This Agreement shall become effective when it
shall have been executed and delivered by the Initial Borrower and the Agent and
when the Agent shall have been notified by each Initial Lender that such Initial
Lender has executed it and thereafter shall be binding upon and inure to the
benefit of the Borrowers, the Agent and each Lender and their respective
successors and assigns, except that (other than in accordance with Section
5.02(b) or Section 8.10) no Borrower shall have the right to assign its rights
hereunder or any interest herein without the prior written consent of the
Lenders.
SECTION 8.07 Assignments and Participations. (a) Without the written
consent of the Initial Borrower (which consent may be withheld in its sole and
absolute discretion) and of the Agent (which consent shall not be unreasonably
withheld), no Lender may assign all or any portion of its rights and obligations
under this Agreement to any Person, except to an Affiliate of such Lender, as
provided in Section 2.11, 2.14 or 2.18, or as set forth in Section 8.07(g) or to
another Lender that is an Affiliate of such Lender. If any Lender (i) requests
any payment to under Section 2.11 or Section 2.14 or (ii) gives notice to any
Borrower pursuant to Section 2.12, then, so long as no Default or Event of
Default has occurred and is continuing at such time, any Borrower may demand
upon at least three Business Days' notice to such Lender and the Agent that such
Lender, and, upon such demand, such Lender shall, assign all of its rights and
obligations under this Agreement to any Person designated by such Borrower. Each
assignment pursuant to the terms of this Section 8.07(a) (A) shall be of a
constant, and not a varying, percentage of all rights and obligations under this
Agreement (and, in the case of an assignment demanded by a Borrower, shall be
either an assignment of all of the rights and obligations of the assigning
Lender under this Agreement or an assignment of a portion of such rights and
obligations made concurrently with another such assignment or other such
assignments that together cover all of the rights and obligations of the
assigning Lender under this Agreement), except that any such assignment of a
Commitment by a Lender to another Lender that is an Affiliate of such Lender
need not be accompanied by an assignment of the same percentage of any of the
assigning Lender's Advances and any such assignment of one or more Advances by a
Lender to another Lender that is an Affiliate of such Lender need not be
accompanied by an assignment of the same percentage the assigning Lender's
Commitment or any of the assigning Lenders other Advances, (B) except in the
case of an assignment to a Person that, immediately prior to such assignment,
was a Lender or an assignment of all of a Lender's rights and obligations under
this Agreement, shall in no event be less than $10,000,000, and (C) shall be
evidenced by evidenced by an Assignment and Acceptance executed by each of the
parties thereto and delivered to the Agent, for its acceptance and recording in
the Register. No Lender shall be obligated to make any such assignment as a
result of a demand by a Borrower pursuant to this Section 8.07(a) unless and
until such Lender shall have received one or more payments from either each of
the Borrowers or one or more assignees therefrom in an aggregate amount at least
equal to the aggregate outstanding principal amount of the Advances owing to
such Lender, together with accrued interest thereon to the date of payment of
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such principal amount and all other amounts payable to such Lender under this
Agreement. Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in each Assignment and Acceptance, (1) the
assignee thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder and (2) the
Lender assignor thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all or the remaining
portion of an assigning Lender's rights and obligations under this Agreement,
such Lender shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the Lender
assignor thereunder and the assignee thereunder confirm to and agree with each
other and the other parties hereto as follows: (i) other than as provided in
such Assignment and Acceptance, such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
any of the other Loan Documents or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or perfection or priority
of any lien or security interest created or purported to be created under or in
connection with, this Agreement or any of the other Loan Documents or any other
instrument or document furnished pursuant hereto or thereto; (ii) such assigning
Lender makes no representation or warranty and assumes no responsibility with
respect to the financial condition of any Borrower or the performance or
observance by any Borrower of any of its obligations under this Agreement or any
of the other Loan Documents or any other instrument or document furnished
pursuant hereto or thereto; (iii) such assignee confirms that it has received a
copy of this Agreement, together with copies of the financial statements
referred to in Section 4.01 and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance; (iv) such assignee will, independently and
without reliance upon the Agent, such assigning Lender or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement; (v) such assignee appoints and authorizes the Agent to
take such action as agent on its behalf and to exercise such powers and
discretion under this Agreement and the other Loan Documents as are delegated to
the Agent by the terms hereof and thereof, together with such powers and
discretion as are reasonably incidental thereto; and (vi) such assignee agrees
that it will perform in accordance with their terms all of the obligations that
by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee in accordance with Section 8.07(a), together
with any Note or Notes subject to such assignment, the Agent shall, if such
Assignment and Acceptance has been completed and is in substantially the form of
Exhibit B hereto, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to each of the Borrowers.
(d) The Agent shall maintain at its address referred to in Section 8.02 a
copy of each Assignment and Acceptance delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders and
Commitment of, and principal amount of the Advances owing to, each Lender from
time to time, and whether the proceeds of each such Advanced were used for the
purpose of purchasing or carrying margin stock (within the meaning of Regulation
U issued by the Board of Governors of the Federal Reserve System) (the
"Register"). The entries in the Register shall be conclusive and binding for all
purposes, absent manifest error, and each of the Borrowers, the Agent and the
Lenders may treat each Person whose name is recorded as a Lender in the Register
as a Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by each of the Borrowers or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
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(e) Each Lender may upon not less than five Business Days' notice to the
Initial Borrower sell participations to one or more banks or other entities in
or to all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment, the Advances
owing to it and any Note or Notes held by it); provided, however, that (i) such
Lender's obligations under this Agreement (including, without limitation, its
Commitment to each of the Borrowers hereunder) shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) such Lender shall remain the holder of
any such Note for all purposes of this Agreement, (iv) each of the Borrowers,
the Agent and the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under this
Agreement and (v) no participant under any such participation shall have any
right to approve any amendment or waiver of any provision of this Agreement or
any other Loan Document, or any consent to any departure by the Borrowers
therefrom, except to the extent that such amendment, waiver or consent would
reduce the principal of, or interest on, the Advances or any fees or other
amounts payable hereunder, in each case to the extent subject to such
participation, or postpone any scheduled date for any payment of principal of,
or interest on, the Advances or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation. If any Lender sells a
participation as described in this Section 8.07(e), such Lender shall provide to
the Agent on behalf of the Borrowers, or maintain as agent of the Borrowers, the
information described in Section 8.07(d) with respect to such participation and
shall permit each of the Borrowers to review such information (to the extent
permitted under applicable law) from time to time upon request. Neither the sale
of any such participation nor the holding of such a participation by any
participant shall increase any obligation of any Borrower under Section 2.14.
(f) Any Lender may, in connection with any assignment or participation or
proposed assignment or proposed participation, disclose to the assignee or
participant or proposed assignee or participant any financial statements and
related documents delivered to the Agent in accordance with Section 4.01(e),
Section 5.01(d)(i) or Section 5.01(d)(ii); provided that, prior to any such
disclosure, the assignee or participant or proposed assignee or proposed
participant shall agree to preserve the confidentiality of any Confidential
Information received by it in accordance with the terms of Section 8.08.
(g) Notwithstanding any other provision set forth in this Agreement, any
Lender may at any time create a security interest in all or any portion of its
rights under this Agreement (including, without limitation, the Advances owing
to it and any Note or Notes held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve
System.
SECTION 8.08 Confidentiality. Neither the Agent nor any Lender shall
disclose any Confidential Information to any other Person without the consent of
each of the Borrowers, other than (a) to the Agent's or such Lender's Affiliates
and their officers, directors, employees, agents and advisors and, as
contemplated by 8.07(f), to actual or prospective assignees and participants,
and then only on a confidential basis, (b) as required by any law, rule or
regulation or judicial process and (c) as requested or required by any state,
federal or foreign authority or examiner regulating banks or banking; provided,
that, with respect to clause (b) above, the Agent and each Lender agree to
notify the Initial Borrower promptly of any such request for the disclosure of
Confidential Information unless such notification is prohibited by applicable
law, rule or regulation or by judicial process.
SECTION 8.09 Judgment Currency. (a) If for the purposes of obtaining
judgment in any court it is necessary to convert a sum due hereunder in Dollars
or Euros into another currency, the parties hereto agree, to the fullest extent
that they may effectively do so, that the rate of exchange used shall be that at
which in accordance with normal banking procedures the Agent could purchase
Dollars or Euros,
-44-
as the case may be, with such other currency at Citibank's principal office in
London at 11:00 A.M. (London time) on the Business Day preceding that on which
final judgment is given.
(b) The obligation of each Borrower in respect of any sum due from it in
any currency (the "Primary Currency") to any Lender or the Agent hereunder
shall, notwithstanding any judgment in any other currency, be discharged only to
the extent that on the Business Day following receipt by such Lender or the
Agent (as the case may be), of any sum adjudged to be so due in such other
currency, such Lender or the Agent (as the case may be) may in accordance with
normal banking procedures purchase the applicable Primary Currency with such
other currency; if the amount of the applicable Primary Currency so purchased is
less than such sum due to such Lender or the Agent (as the case may be) in the
applicable Primary Currency, each Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify such Lender or the Agent (as the
case may be) against such loss, and if the amount of the applicable Primary
Currency so purchased exceeds such sum due to any Lender or the Agent (as the
case may be) in the applicable Primary Currency, such Lender or the Agent (as
the case may be) agrees to remit to such Borrower such excess.
SECTION 8.10 Additional Borrowers; Assumption of Advances. (a) The Initial
Borrower may request that any of the Related Parties become party to this
Agreement as an additional borrower (an "Additional Borrower"), and additionally
such Related Party or a Borrower may elect that all or any portion of the
Advances and other obligations of any Borrower under this Agreement and the
other Loan Documents shall be assumed by any other Borrower, in either case, by
delivering to the Agent each of the following:
(i) a Borrower Accession Agreement, duly executed by the Initial
Borrower and such Related Party, together with a certificate of an
authorized representative of the Additional Borrower certifying the names
and true signatures of the other authorized representatives of the
Additional Borrower authorized to sign the Borrower Accession Agreement and
the other documents to be delivered hereunder;
(ii) an opinion of counsel addressing the matters covered by opinion
paragraphs 1, 2, 3, and 4 of Exhibit C-1, opinion paragraph 1 of Exhibit
C-2, and opinion paragraphs 1 and 2 of Exhibit C-3 in Section 3.01(d)(iv)
(with such exceptions, assumptions and qualifications as are customary or
appropriate in light of the circumstances under which such opinion is
given);
(iii) (A) except in the case of any Related Party that will be an
Affiliate Guaranteed Borrower, the most recently available quarterly or
annual financial statements of such Related Party and its Subsidiaries
(which may be unaudited) and (B) in the case of an Affiliate Guaranteed
Borrower, the most recently available quarterly or annual financial
statements of the applicable Guarantor (which may be unaudited); and
(iv) if, as of the date such Related Party becomes an Additional
Borrower, such Related Party does not have long-term senior unsecured debt
ratings of A- or better from S&P or A3 or better from Xxxxx'x, a duly
executed and delivered Guaranty Agreement from the Company or a Related
Party that maintains such debt rating at such time.
(b) A Related Party in respect of which the Initial Borrower has delivered
a Borrower Accession Agreement to the Agent shall become an Additional Borrower
and, as such, shall have all of the rights and obligations of a Borrower
hereunder with respect to the Commitments specified to be made available to such
Additional Borrower, which shall be in a minimum amount of $500,000,000;
provided, that no Default or Event of Default shall have occurred and be
continuing or would result from such joinder or assumption, as applicable. Upon
any assumption of all of the Advances and other obligations
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of any Borrower, then, so long no Notice of Revolving Credit Borrowing or Notice
of Competitive Bid Borrowing in respect of such Borrower is outstanding at such
time, such Borrower shall no longer be a party to this Agreement.
SECTION 8.11 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
SECTION 8.12 Jurisdiction. (a) Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or federal court of the
United States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Agreement or any other Loan Document, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in any such New York State court or, to the extent permitted by
law, in such federal court. Each Borrower agrees that service of process in any
such action or proceeding brought in any such New York State court or in such
federal court may be made upon CT Corporation System and its offices at 000
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Process Agent"), and hereby
further agrees that any failure of the Process Agent to give any notice of any
such service to any Borrower shall not impair or affect the validity of such
service or of any judgment rendered in any action or proceeding based thereon.
Each of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Agreement shall affect any right that any party may otherwise have to bring any
action or proceeding relating to this Agreement or any other Loan Document in
the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or any other Loan
Document in any New York State or federal court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any
such court.
SECTION 8.13 Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Agreement by
telecopier shall be effective as delivery of a manually executed counterpart of
this Agreement.
SECTION 8.14 Waiver of Jury Trial. Each of the Borrowers, the Agent and the
Lenders hereby irrevocably waives all right to trial by jury in any action,
proceeding or counterclaim (whether based on contract, tort or otherwise)
arising out of or relating to this Agreement or any of the other Loan Documents
or the actions of the Agent or any Lender in the negotiation, administration,
performance or enforcement thereof.
SECTION 8.15 Patriot Act. Each Lender hereby notifies each of the Borrowers
that, pursuant to the requirements of the USA Patriot Act (Title III of Pub. L.
107-56 (signed into law on October 26, 2001)) (the "Act"), it is required to
obtain, verify and record information that identifies each Loan Party, which
information includes the name and address of each Loan Party and other
information that will allow such Lender to identify such Loan Party in
accordance with the Act.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers or representatives thereunto duly
authorized, as of the date first above written.
PROCTER & XXXXXX INTERNATIONAL S.A.R.L.,
as the Initial Borrower
By
-------------------------------------
Title:
---------------------------------
CITIBANK, N.A., as Agent
By
-------------------------------------
Title:
---------------------------------
Initial Lenders
Commitment CITIBANK, N.A., as a Lender
$6,000,000,000
By
-------------------------------------
Title:
---------------------------------
Signature Page to Credit Agreement
Commitment JPMORGAN CHASE BANK, N.A.,
$3,000,000,000 as a Lender
By
-------------------------------------
Title:
---------------------------------
Signature Page to Credit Agreement
Commitment ABN AMRO BANK N.V., as a Lender
$3,000,000,000
By
-------------------------------------
Title:
---------------------------------
Signature Page to Credit Agreement
Commitment DEUTSCHE BANK AG NEW YORK BRANCH,
$3,000,000,000 as a Lender
By
-------------------------------------
Title:
---------------------------------
By
-------------------------------------
Title:
---------------------------------
Signature Page to Credit Agreement
Commitment XXXXXXX XXXXX CAPITAL CORP.
$3,000,000,000 as Lender
By
-------------------------------------
Title:
---------------------------------
Signature Page to Credit Agreement
Commitment HSBC BANK USA, NATIONAL ASSOCIATION
$1,000,000,000 as Lender
By
-------------------------------------
Title:
---------------------------------
Commitment THE HONG KONG SHANGHAI BANKING
$2,000,000,000 CORPORATION LIMITED
as Lender
By
-------------------------------------
Title:
---------------------------------
Signature Page to Credit Agreement
Commitment XXXXXX XXXXXXX BANK
$300,000,000 as Lender
By
-------------------------------------
Title:
---------------------------------
Commitment XXXXXX XXXXXXX SENIOR FUNDING, INC.,
$2,700,000,000 as a Lender
By
-------------------------------------
Title:
---------------------------------
Signature Page to Credit Agreement
SCHEDULE I
CREDIT AGREEMENT
APPLICABLE LENDING OFFICES
Name of Lender Domestic Lending Office Eurocurrency Lending Office
----------------------------------- ------------------------------ ------------------------------
ABN AMRO Bank N.V. 000 Xxxx Xxxxxxx Xxxxxx 000 Xxxx Xxxxxxx Xxxxxx
Xxxxx 0000 Xxxxx 0000
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Loan Administration Attn: Loan Administration
T: 000 000-0000 T: 000 000-0000
T: 000 000-0000 T: 000 000-0000
Citibank, N.A. Two Xxxxx Xxx Xxx Xxxxx Xxx
Xxx Xxxxxx, XX 00000 Xxx Xxxxxx, XX 00000
Attn: Attn:
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
Deutsche Bank AG New York Branch 00 Xxxxxx Xxxxxx 00 Xxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000 Xxxxxx Xxxx, XX 00000
Attn: Xxx Xxxxxx Attn: Xxx Xxxxxx
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
HSBC Bank USA, National Association One HSBC Center Xxx XXXX Xxxxxx
00xx Xxxxx 00xx Xxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxx Attn: Xxxxx Xxxxx
T: 000 000-0000 T: 000 000-0000
F: 716 841--5683 F: 716 841--5683
The Hong Kong Shanghai Banking Xxxxx 0 Xxxxx 0
Corporation Limited HSBC Main Building HSBC Main Building
1 Queen's Road Central 0 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx Xxxx Xxxx
Attn: Xxxx Xxxx Attn: Xxxx Xxxx
T: 852 2822 2503 T: 852 2822 2503
F: 852 2866 4249 F: 852 2866 4249
JPMorgan Chase Bank, N.A. 0000 Xxxxxx Xxxxxx, 10th Floor 0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx Attn: Xxxxxx Xxxxxx
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
Xxxxxxx Xxxxx Capital Corp. 4 World Financial Center 4 World Financial Center
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxx Buttenmuller Attn: Xxxxx Buttenmuller
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
Xxxxxx Xxxxxxx Bank 0000 Xxxx Xxxx Xxxx. 0000 Xxxx Xxxx Xxxx.
Xxxxx 000X Suite 300C
West Valley City, UT 84120 Xxxx Xxxxxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxx Attn: Xxxxx Xxxxxxx
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
Xxxxxx Xxxxxxx Senior Funding, Inc. 0000 Xxxxxxxx 0000 Xxxxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxx Attn: Xxxxx Xxxxxxx
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
